Saugatuck Dunes

Greenwire: Midwest law center can compromise but doesn’t fear a fight

Jeremy P. Jacobs, E&E reporter
Published: Friday, February 27, 2015

Ask Chicago environmentalists who’s the Windy City’s best lawyer, and they’re likely to name Howard Learner.

Learner has built his Environmental Law and Policy Center into a Midwest powerhouse over the last 20 years on transportation and clean energy issues, scoring victories in courtrooms and state legislatures along the way.

His shop eschews the national spotlight for a hyper-regional focus that he says is part of the group’s DNA.

“First of all, we are Midwesterners,” he said. “The Midwest is probably the most important region in the most important country in the world.”

ELPC is among a few regional environmental law centers that operate in the gap between national Goliaths like the Natural Resources Defense Council and small grass-roots organizations. The center takes on major litigation — fighting lawsuits brought by former Chesapeake Energy Corp. CEO Aubrey McClendon, arguing for solar and wind energy in state Supreme Courts, and battling Great Lakes pollution. Moreover, it has developed a lobbying operation that pressures government officials — from U.S. senators to mayors — to support environmentally progressive policies.

Learner prides himself on leading a “grass-tops” organization, meaning it seeks to unite leaders from often-opposing camps — such as unions and local chambers of commerce — to push for common goals.

Sometimes that works, and sometimes it doesn’t, but ELPC is now thriving, thanks largely to Learner’s grasp of regional politics.

“He has steered clear of the weird political fights,” said J. Paul Forrester, an energy and agricultural specialist at Mayer Brown in Chicago. “He has a lot of political acumen. I give him a lot of credit for that. That’s helped him avoid ugly confrontation.”

Howard Learner launched the Environmental Law and Policy Center 20 years ago.
Howard Learner launched the Environmental Law and Policy Center 20 years ago.

Learner, 59, lives a mile-and-a-half from where he was born in Chicago. The son of a University of Wisconsin football player, he’s well over 6 feet tall and bearded. He cuts an imposing presence that he establishes right away with a firm handshake.

Growing up as an outdoorsman, Learner biked across Wisconsin several times and always had a backpack ready for weekend trips. He attended the University of Michigan and remains a devoted fan of the Wolverine football team, then headed to Harvard Law School.

He returned to Chicago with his law degree and worked for a public interest law firm that specialized in housing cases. Learner launched the group’s environmental practice and specialized in pro bono work.

In 1991, seven major foundations pooled funds and asked several local lawyers for proposals for a regional-based legal center to address environmental programs in the Midwest. Such a group didn’t exist, and, as Learner recalled, there were ample reasons the region needed one.

The Great Lakes contain nearly a fifth of the world’s freshwater supply and provide drinking water to more than 40 million people. At the time, electricity utilities were becoming more regionally focused, building power lines across state borders. The Midwest was also home to some of the dirtiest coal-fired power plants. Three-quarters of the pollution in the Great Lakes was coming from the energy and transportation sectors.

The region also served as the nexus of multiple types of transportation; interstate highways crisscross the area, as do major railways. And Chicago’s O’Hare International Airport serves as a hub of air travel in the region.

“If you are serious about solving our climate change problems, and you’re serious about keeping the Great Lakes clean,” Learner said, “you need to deal with the energy and transportation sectors on a regional basis.”

Learner applied for the funding, basing his proposal in part on other regional outfits like the Conservation Law Foundation in New England, the Southern Environmental Law Center and the Sierra Club Legal Defense Fund on the West Coast, which has since become Earthjustice.

The foundations backed Learner, guaranteeing $850,000 per year for three years. He left his practice, rented a storefront and started assembling furniture.

At the core of the group’s philosophy from the start, Learner said, was devising “pragmatic solutions” that paired environmental benefits with economic growth and job creation. Now such proposals are increasingly common among environmental groups, but at the time they weren’t.

Learner pledged that whenever his group came out against a project or proposal, it would say yes to a less harmful alternative.

“We said from the beginning we weren’t going to get boxed in as naysayers,” he said.

ELPC now has an annual budget of more than $6.5 million and about 50 employees in eight offices throughout the Midwest. It divides its efforts into two groups. Its strategic advocacy arm lobbies and files lawsuits to fight what it views as environmentally harmful policies. And second, it brings parties together to come up with “eco-business” deals and proposals, such as working with labor unions, local chambers of commerce and officials to facilitate solar and wind energy development in the Midwest, or a regional high-speed rail network.

Those efforts have yielded results. Iowa is the second-largest wind energy producer in the country, and Illinois, Minnesota and Kansas all rank within the top 10. And plans for a regional high-speed rail proposal to serve 60 million people in eight states are starting to jell. The St. Louis-to-Chicago-to-Detroit line is being built, and sections already run at 110 mph. The effort has garnered the support of the Obama administration, which committed $13 billion in the 2009 stimulus package.

Looking for opportunity

ELPC’s success is due in large part to Learner’s relentlessness.

Jerry Adelmann, president of the Chicago-based Openlands conservation group, said it typically takes Learner “two seconds” to respond to an email.

“He lives and breathes this stuff,” Adelmann said. “It’s part of his very being.”

To his foes — which are typically entrenched energy utilities — Learner can come off as a zealot. But he has overcome such criticism through political adeptness, which is unusual for someone who wears his Democratic-leaning politics on his sleeve.

Learner was Illinois delegate at the 2004 Democratic National Convention, and has served on political committees that others in the nongovernmental organization community would likely shy away from out of fear of reprisals from the other side.

“Howard is out front in terms of his politics,” Adelmann said.

Learner seems to dodge most blowback, though, largely because of his instincts.

“I think Howard is one of those visionary leaders,” said Josh Mandelbaum, an attorney in ELPC’s Des Moines, Iowa, office. “His mind is always spinning, and he sort of sees the direction that things are moving. He is constantly trying to anticipate what opportunities will present themselves and constantly trying to take advantage of them in a strategic way.”

That doesn’t mean ELPC doesn’t have critics.

Todd Maisch, president of the Illinois Chamber of Commerce, said it’s possible to have a “reasonable conversation” with ELPC. But he stressed that the group often presses for more stringent environmental controls than his members can support.

“Bottom line is, we think a big part of their agenda results in very little environmental improvement but huge costs,” Maisch said.

He added that ELPC’s coalition building is often less successful than the group says.

“Their attempts,” he said, “to bring people together to build a consensus — a lot more of those fail than succeed.”

Battling energy tycoon

Learner and ELPC can nevertheless point to significant achievements, both on the large and small scale.

ELPC was part of a coalition that pushed for the closure of two old power plants in 2012 on Chicago’s South Side, the city’s last two coal-fired facilities. Before that, it fought to ensure that wastewater was treated before utilities discharged it into the Chicago River.

And last summer, ELPC lawyers secured an Iowa Supreme Court victory in challenging an Iowa Utilities Board decision that created an unfavorable and expensive environment for solar energy development in the state.

There is also a strong “defender of the little guy” thread to their work. Perhaps no case illustrates that better than ELPC’s work for a small community in Saugatuck, Mich., against former Chesapeake CEO McClendon.

ELPC’s victories include protecting regional waterways like the Chicago River from contaminated discharges.
ELPC’s victories include protecting regional waterways like the Chicago River from contaminated discharges.

An artsy Lake Michigan resort town with fewer than 1,000 year-round residents, Saugatuck is a 2½-hour drive from Chicago. In summer, tourists visit the town’s art galleries, shops and renowned beach dunes. The community has sought to protect those attractions from development by passing strict zoning laws.

Those efforts were threatened, however, in 2007, when McClendon bought 412 acres at the mouth of the Kalamazoo River that the town had been trying to make part of the public domain and conserve for 50 years.

McClendon wanted to build a gated community and resort on the land, with a nine-hole golf course, hotel, mansions and condos. Within 30 days of purchasing the property, he filed a series of lawsuits challenging Saugatuck’s zoning laws.

Overwhelmed, David Swan and the Saugatuck Dunes Coastal Alliance turned to Learner for help.

ELPC took the cases, and Swan said the group’s attorneys became part of the community. They also provided communications and marketing support to Swan and his allies.

They were able to halt McClendon’s development. In November 2011, a federal district court judge threw out a settlement between McClendon and the Saugatuck Township Board that would have essentially removed zoning provisions from the property. The judge ruled that the settlement would have illegally prevented the board from ever updating its zoning laws for the property.

Further, the court held that any future such settlement would require a hearing to ensure it benefits the “public good.”

There remains some ongoing litigation, but the community has since bought back half the land McClendon purchased. And, Swan said, nothing has been built on McClendon’s land.

Swan credits ELPC with saving the dunes — and his community.

“It just kind of amazed me,” Swan said. “Here was a really brilliant attorney, who is really busy with huge projects, and he doesn’t let small projects like trying to save 400 acres of pristine duneland fall by the wayside.”

Saugatuck Residents Say Court’s Decision is a Victory for Their Community

Saugatuck residents, conservation, historical and civic organizations are declaring victory after Chief Judge Paul Maloney of the U.S. District Court for the Western District of Michigan declared illegal a proposed consent decree between developer Aubrey McClendon’s Singapore Dunes L.L.C. and the Saugatuck Township Board that would have allowed the developer to build a hotel, marina and condominiums on duneland on the shore of Lake Michigan.

The development is contrary to Saugatuck Township’s current zoning laws. McClendon sued Saugatuck Township over the zoning laws in federal court.  On November 1st, the Court ruled that the proposed consent decree violated state law because it would have prevented the Township Board from ever modifying the zoning of McClendon’s property and created a remedy that exceeded the procedural harms alleged by the developer.

The Court’s decision holds that the proposed consent decree is illegal and “impermissibly ties the hands of future township boards.” The Township and McClendon can renegotiate, but any new settlement cannot sign away the ability of future Township Boards to zone and protect land within the community.

“Judge Maloney’s decision helps restore faith in the fairness of ‘the system’,” said Marcia Perry, Vice President of the Saugatuck Dunes Coastal Alliance (SDCA).  “The hundreds of people who protested this unfair proposed consent agreement are justified by the Judge’s ruling.”

“This is a huge victory for the Saugatuck people and businesses who care about protecting our ‘pure Michigan’ landscape,” said SDCA President David Swan. “The Court’s decision affirms that the rule of law can trump the influence of a billionaire’s money and political clout.”

“As a resident of Saugatuck Township for over 35 years, I’m pleased to see that the Court has upheld our Township’s authority to make land use decisions,” said Sandra Randolph, Saugatuck Township resident and business owner. “I hope this will lead to a fair process that will better serve our community going forward.”

“The National Trust for Historic Preservation is delighted that Judge Maloney’s action has given the community another chance to protect the historic character and pristine natural beauty of the Saugatuck Dunes coastal area,” said Stephanie Meeks, president of the National Trust for Historic Preservation. “We also applaud the Court’s decision to require a public hearing prior to its review of any future consent decree incorporating development proposals for this fragile area. We continue to believe that over-scaled development would inflict irreparable harm on the Saugatuck Dunes coastal area and we will continue to work to encourage local community officials and the developer to find a solution that protects this unique and historic place.”

“The Court decided that the local government’s and Saugatuck communities’ authority to make land use and planning decisions can’t be bartered away,” said Howard Learner, Executive Director of the Environmental Law & Policy Center and lead counsel for the Saugatuck Dunes Coastal Alliance. “This is an important legal precedent for smart land use in the Saugatuck communities and across Western Michigan.”

Read more in the Holland Sentinel.

Read more on ELPC’s Saugatuck Dunes page.

Saugatuck Township Board Votes to Approve Settlement

On Friday, the Saugatuck Township (Mich.) Board voted to approve a settlement that, if approved by a federal court judge, will allow significant development on an area of coastal dunes owned by Aubrey McClendon, chief executive of Chesapeake Energy Corp. According to local press, the Board deliberated for less than 30 minutes after hearing more than 4 hours of public comment, most opposed to the settlement and the development.

Read more from the Allegan News or the Chicago News Cooperative. ELPC is legal counsel for the Saugatuck Dunes Coastal Alliance, which opposes intensive commercial development of this pristine assembly of dunes, beaches, woods, and wetlands. Read more.

Saugatuck Township Meeting Postponed

On July 18th, a meeting to discuss the proposed settlement regarding proposed development on part of the Saugatuck Dunes was cut short by local police after an overflow crowd overwhelmed the local high school cafeteria. Local media reported on print and television that nearly 500 people showed up to attend the meeting, where the maximum capacity was about 200. The meeting has been rescheduled for Friday, July 22nd, in the high school gymnasium, which is designed to hold 1,200 people.

The meeting will include brief presentations by both sides, followed by a 2-hour public comment period. Those wishing to speak will be given three minutes each to state their opinions. More information is available from the Saugatuck Dunes Coastal Alliance.

Saugatuck Dunes: ELPC Represents Local Groups Fighting Back Against Proposed Development, Intimidation

ELPC is serving as legal counsel for the Saugatuck Dunes Coastal Alliance and several other Southwest Michigan organizations fighting to protect the Saugatuck Coastal Dunes Area.

This pristine assembly of beaches, dunes, woods, and wetlands has been protected by local zoning rules for more than a generation. But now billionaire energy tycoon Aubrey McClendon wants to develop luxury hotels, condos, a hotel, a marina, and a golf course on the precious lands many have worked hard to preserve.

In October 2010, after McClendon had served extensive subpoenas on dozens of individuals and civic organizations that had questioned his plans, a federal magistrate judge deferred the subpoenas and limited them. While the order was a victory over McClendon’s effort to harass, intimidate and otherwise deter citizen and public participation, the effort to protect the dunes is far from over.

Or it could end on July 18. That’s when the Saugatuck Township Board will convene a public hearing to consider a proposed settlement that would allow much of McClendon’s desired development as well as restrict the Township’s ability to enforce its laws to protect the lakeshore and its resources.  Many residents and concerned citizens are calling on the Township to reject McClendon’s one-sided proposal and consider more reasonable options to protect Saugatuck’s economy and the region’s irreplaceable shoreline.

The dunes have never been in more peril. Refer to our up-to-date Saugatuck page for more information.

Why the Dunes are Important
Why the Dunes are Threatened
A Timeline of Events
What ELPC is Doing to Help


Why the Dunes are Important

The Saugatuck Coastal Dunes Area is a pristine assembly of beaches, freshwater dunes, water, woods and wetlands running from Douglas to Holland and covering approximately 2,500 acres along the Lake Michigan coastline and the mouth of the Kalamazoo River. A mix of private residences, historic sites and significant ecological habitat comprise the area, which local and national advocates have worked hard to preserve over many years (click here to view a recent timeline of events).

The area includes globally imperiled inter-dunal wetlands, habitat that is home to several threatened and endangered species. And it joins together Saugatuck’s Oval Beach, the Saugatuck Lighthouse Cottage, and the Ox-Bow School of Art. Endangered wildlife includes the prairie warbler, which depends on the jack pines that grow in the Dunes. And threatened birds, such as bald eagles, osprey, northern harrier and black terns, have also been documented in the area.

These Dunes have been named one of America’s 11 Most Endangered Places by the National Trust for Historic Preservation. Proposed development could destabilize the dunes, creating substantial risk for the endangered and threatened wildlife that depend on this unique habitat. Further, it could threaten a unique way of life and tourism for the people who live in and visit the area, which contains a crosshatch of boutiques and inns.

As Lana Pollack, Michigan Natural Resources Trust Fund Board Chair and former Michigan State Senator, put it: “The Saugatuck Dunes Coastal Areas represents an extraordinary mix of historical, cultural and ecological assets – threatened by a commonplace (albeit very expensive) housing, marina, commercial and hotel development.”

Why the Dunes are Threatened

After losing several battles with ELPC and our local allies, billionaire developer Aubry McClenden scaled back his original plans somewhat (click here for a timeline of events) and now seeks to build single-family homes and high-rise condominiums with an accompanying marina on the property. While this proposal is much less destructive than the original resort plan, much of it is still sited in the most ecologically sensitive portion of the property, on the dunes along Lake Michigan. Further, this residential plan does not meet the environmental standards of the town’s zoning ordinance and has other procedural defects.

What ELPC is Doing to Help

ELPC serves as the legal counsel for the Saugatuck Dunes Coastal Alliance in its fight to protect the dunes and uphold local zoning rules. Currently, ELPC is engaging in the environmental permit process for the first phase of development and challenging variance requests before the Zoning Board of Appeals to ensure that any development fully complies with the town’s environmental zoning requirements and is as environmentally responsible as possible.

ELPC’s Founding Vision is Becoming Today’s Sustainability Reality

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