Howard Learner

Energywire: Board Shuts Down Vistra Effort to Fast-Track Coal Plant Ruling

Board shuts down Vistra effort to fast-track coal plant ruling

November 5, 2018

By Jeffrey Tomich

The Illinois Pollution Control Board denied a request by Vistra Energy Corp. to expedite new rules that would let the company run its dirtier and more profitable coal plants in the state more frequently.

In an order last week, the five-member board said the Irving, Texas-based power producer’s claims of “economic harms” didn’t justify an expedited rulemaking.

“The board is not convinced that the need to address wholesale energy market issues should control the substance or timing of proposed amendments to a substantive environmental regulation,” the six-page order said.

The order comes a month after the board proposed modifications to Illinois’ Multi-Pollutant Standard (MPS) that includes pollution limits for Vistra’s 18 coal units representing more than 5,000 megawatts (Energywire, Oct. 5).

The Pollution Control Board’s proposal is a sort of compromise between the power producer’s effort to get relief from existing emissions rules and critics, including Attorney General Lisa Madigan (D) and a coalition of environmental groups, which want to keep existing standards in place.

Vistra had asked the board to finalize the rule change by Feb. 1, after which it would be subject to review by a legislative committee before taking effect. Madigan and environmental advocates challenged the request.

Vistra CEO Curt Morgan told analysts during a Friday conference call that the board’s proposal is “reasonable and fair” and he now expects a final outcome in April or May, after which the company could make decisions related to the future of its Illinois coal fleet.

The power producer has suggested it may shutter coal units in southern Illinois based on what executives view as inadequate capacity payments — payments made to ensure power plants are ready to run during periods of peak demand.

Morgan said Vistra is continuing work to “optimize” its Illinois portfolio and believes it can achieve a “reasonably significant” improvement in earnings from its Illinois plants. The company will be ready to act on that plan as soon as it gets an outcome from the Pollution Control Board.

“We’re going to be in a position to execute immediately,” Morgan said. “If the deal goes through the way it is now, we know what we would do. It’s just a matter of timing. But we also have been contingency planning, so if something else happened, then we would be prepared for that, as well.”

A possible wild card in the administrative rulemaking process? Politics.

Illinois voters will elect a governor tomorrow, and polls point to Democratic challenger J.B. Pritzker defeating incumbent Republican Bruce Rauner.

Pritzker earlier this year criticized the rule proposed at Vistra’s request by the Illinois EPA.

In response to a questionnaire sent to candidates by the Chicago Sun-Times, the Democrat said of the proposed MPS rule change: “I will stand on the side of science and reason and not scrap limits on pollution.”

But would a new governor, during his first months in office and facing a fiscal crisis, step in and derail an administrative rule initiated by his predecessor?

Howard Learner, executive director of the Environmental Law and Policy Center, one of the groups challenging Vistra’s petition, believes a Pritzker administration would reassess the state’s position on the rule proposal.

“You’re dealing with a proposal that came from the Illinois EPA,” he said.

While the board wouldn’t explicitly seek out a new governor’s stance before issuing a ruling, Learner said he believes this week’s election will provide important context for their decision.

“They’ll be interested to hear what [the administration’s] position is if a new governor is elected,” he said.

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6 Reasons Why this Tax is a Crummy Way to Improve Illinois’ Roads and Bridges

6 Reasons Why this Tax is a Crummy Way to Improve Illinois’ Roads and Bridges

The political rhetoric on a possible new vehicle miles traveled (VMT) tax begs the question of whether or not this makes good sense on the merits. It doesn’t. The VMT tax is not a sound or fair way to fund Illinois’ transportation infrastructure.

Current gas tax revenues are insufficient to meet Illinois’ infrastructure needs. Oil companies, the trucking industry and a few politicians propose raising more revenues by shifting from gas taxes to VMT taxes, which charge drivers based on how many miles they travel. This would require installing a new onboard tracking device in every vehicle, and a new state bureaucracy to calculate taxes owed and assign revenues to appropriate jurisdictions.

If Illinois legislators believe that more funding is needed for infrastructure investments, then raising the gas tax is fairer, simpler and better policy. Twenty-seven states, including Indiana, Iowa and Michigan, have raised or reformed their gas taxes since 2013. Gas and other motor fuel taxes are: easily administered with existing mechanisms; capture revenues from out-of-state drivers who use Illinois roads so they pay their fair share for repairs and improvements, and effectively price carbon pollution while incentivizing cleaner cars that provide air quality improvement benefits for everyone. Here’s why the VMT tax doesn’t work well for Illinois.

First, a state VMT tax is unfair for “crossroads” states, like Illinois, with interstate highways used by millions of out-of-state drivers. Changing to VMT taxes would give a free ride to out-of-state motorists who now pay Illinois gas taxes to maintain the Illinois highways that they use. Why would Illinois policymakers want Illinois drivers to subsidize highway use for out-of-state motorists?

Second, current gas taxes are simple to administer at the pump and can be adjusted using existing mechanisms. The VMT tax would instead require installing new technology in personal cars and a costly new bureaucracy.

Third, the VMT tax would penalize modern new clean hybrid and electric vehicles that pollute much less than old internal combustion engine and diesel vehicles. These cleaner cars produce air quality, public health and other environmental quality benefits for everyone. With federal tax credits incentivizing purchases of electric vehicles, why create a new VMT tax system that charges people more?

Fourth, gas taxes price carbon to discourage greenhouse gas pollution and promote solutions. If you’re driving fuel efficient, low-polluting cars like the Chevy Bolt, Ford Focus, Nissan Leaf or Toyota Prius, then you’d pay the same VMT tax as someone driving a highly-polluting gas guzzler. Illinois won’t face a large erosion of gas tax revenues from electric vehicle market penetration for many years. There’s no real problem to solve now.

Fifth, heavy trucks that cause an extraordinary amount of road wear-and-tear could get off easy under VMT taxes. The Congressional Budget Office’s March 2011 report, in comparing gas taxes and VMT taxes, emphasized the disproportionately high road wear from trucks compared to miles driven: “Heavy trucks travel less than 10 percent of all vehicle miles, but their costs per mile are far higher than are those for passenger vehicles, and they are responsible for most pavement damage.”

Sixth, many people have sincere privacy concerns that VMT taxes require drivers to install tracking devices that enable governments to view their mileage, locations and time of travel. Pew Research’s February 2015 poll found that 67 percent of Americans said that “Not having someone watch you or listen to you without your permission” was “Very important” to them, with an additional 20 percent responding “Somewhat important.”

If legislators are reluctant to raise gas taxes, then why do they think VMT taxes would be any more popular? Illinois policymakers can support gas tax increases — as many states have already done — to improve transportation infrastructure. A VMT tax is the wrong tool to address Illinois’ transportation challenges.

This post originally ran in Crain’s Chicago Business. Read the article HERE

Energy News Network: Illinois Pollution Board Proposes New Emissions Rules in Dynegy Coal Saga

Illinois pollution board proposes new emissions rules in Dynegy coal saga

By Kari Lydersen

The Illinois Pollution Control Board is taking public comments on an amended emissions rule for Dynegy’s coal plants in the state.

Last year, the pollution control board had put forth rules written by the Illinois EPA with much input — even line edits — from Dynegy itself, as emails and documents obtained by environmental groups showed.

Clean air advocates say the new proposed rules are better than those earlier ones but still do not do enough to limit pollution from the aging coal plants.

“They are lower than what Illinois EPA was proposing and lower than what Dynegy is asking for, but still significantly higher than what the company has emitted in recent years,” said James Gignac, lead Midwest energy analyst with the Union of Concerned Scientists.

The company Vistra, which acquired Dynegy this year, released a statement saying it supports the pollution control board’s proposal, which includes stricter emissions caps than those previously recommended but keeps intact what’s known as a mass-based approach, in which the company gets a flat, fleet-wide cap instead of one based on the amount of power generated, or a rate-based approach. The proposal also includes a measure ardently backed by clean air advocates: that when a plant closes or is “mothballed,” the emissions it had been allowed be removed from the total cap.

Clean air advocates say they feel they are now in a waiting game, with much hanging on the public comment period and how the board responds to comments, including whether it makes total emissions caps for the plants stricter.

Dirty and clean plants

Opponents of the mass-based approach fear it will let Dynegy continue running or ramp up its dirtier coal plants, while potentially closing or ramping down cleaner plants that are more expensive to run.

“Any plant under a mass-based approach can pollute more and another one can pollute less — it still means an older plant with less pollution control can up its emissions,” said Toba Pearlman, staff attorney for the Natural Resources Defense Council. “[The recent proposal] is probably good for Vistra and bad for the people that live around the plants… We do think this is part of a larger strategy for Dynegy to squeeze Illinois for more money on their plants.”

The NRDC and Sierra Club in May released a report showing that Dynegy’s coal plants could close without affecting Illinois’ energy supply, noting the plants’ output could be replaced with renewable energy.

Vistra’s statement praised the latest proposal for allowing the company “the flexibility to assess and optimize its fleet of power plants to compete in the market.” It added that while Vistra’s subsidiary Luminant, which controls the plants, “supported the IEPA proposal, the company believes the IPCB proposal to be thoughtful and reasonable. Luminant will work constructively through the remainder of the process and looks forward to fully implementing the new standards.”

Dynegy acquired the five plants in 2013, with then-owner Ameren practically paying the company to take them off its hands. Since then Dynegy has worked on multiple fronts to try to keep the plants profitable, including a failed attempt to include supports in the 2016 Future Energy Jobs Act and an ongoing effort to change capacity market structures or switch markets, along with pushing for less stringent pollution requirements.

Howard Learner, executive director of the Environmental Law & Policy Center, noted that the pollution limits being amended have been on the books for a decade.

“They had plenty of time to adjust and retrofit their plants to come into compliance,” he said. “When Dynegy bought those plants, they knew what the standards were. And when Vistra bought Dynegy, they knew…but when the deadline came, they turned to a backroom deal.”

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Affordable Clean Energy Rule Hearing Testimony

Testimony of Howard A. Learner,
Executive Director, Environmental Law & Policy Center

On the United States Environmental Protection Agency’s Proposed Rule:
Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions to New Source Review Program, called Affordable Clean Energy Rule. 83 Fed. Reg. 44,746

The Midwest produces more electricity from coal plants than any other region of the country, and our residents bear the full range of pollution harms to human health, the Great Lakes and our overall environmental quality.

EPA’s proposed new ACE will reverse United States’ efforts to cut carbon pollution and will allow more old coal plants to keep polluting our air and water. The 2015 Clean Power Plan established the first federal standards to reduce carbon pollution from existing coal plants. The Clean Power Plan can help drive the United States’ economy toward modern renewable energy and energy efficiency technologies that improve public health, and boost clean energy jobs in the Midwest and elsewhere. The EPA’s new proposal undermines smart climate change solutions and a growing clean energy economy future.

America’s Heartland is well positioned to lead us forward by delivering climate change solutions powered by wind power and solar energy and maximizing energy efficiency in ways that are good for Midwest jobs and economic growth. Last week, ELPC released our new report: Indiana Wind Power & Solar Energy Supply Chain Businesses: Good for Manufacturing Jobs, Good for Economic Growth and Good for Our Environment. This report highlights 89 Indiana businesses engaged in the clean energy business supply chain at 112 locations across Indiana. Policies drive markets. ELPC’s report explains in detail how Indiana should step up its policy support to compete effectively in the growing clean energy economy. You can download the ELPC report here. This report adds to ELPC’s other Midwest state reports detailing clean energy jobs.

Midwest wind power and solar energy development are good for business growth and the environment together. Renewable energy development creates many thousands of skilled manufacturing and construction jobs, and development, design and professional services jobs.

The EPA’s proposed ACE plan, however, would move our nation backwards and cost American jobs. This morning, I will make three specific points about this flawed proposal:

First, EPA’s proposed ACE is legally flawed. EPA’s proposal is contrary to any reasonable interpretation of “best system of emissions reduction” and does not fulfill the Agency’s responsibilities under the Clean Air Act to reduce harmful air pollution.

EPA’s proposal would replace the Clean Power Plan’s reasonable and achievable goal of reducing carbon pollution from the power sector by 32% with a flawed policy that instead sets no such pollution limits. The Clean Power Plan carries out the Clean Air Act’s requirement to protect public health that is endangered by carbon pollution. It provides states with clear standards and flexible tools to reduce carbon pollution. The ACE plan, however, does not.

EPA’s ACE proposal provides an incomplete menu of technologies that nominally improve the heat rate of coal plants, but provides states the option of requiring nothing at all from power plants. The ACE proposal imposes no deadlines for implementing control measures to the extent that any are required. This proposal is inconsistent with the Clean Air Act, and it abandons EPA’s responsibility to take effective actions to reduce carbon pollution from power plants, which has been found by sound science to endanger public health.

Second, the proposed ACE rule will encourage more investment in old, inefficient coal plants that should be winding down. If states require one or more improvements from the “menu,” which plant owners are not now making, that will lead to greater dispatch of these coal plants and will disrupt the market trends away from old coal plants towards new, clean energy production. EPA should not cause any industry to be more polluting, but its own analysis shows that the proposed ACE rule would do exactly that.

Third, the New Source Review changes proposed in the ACE rule are a giveaway to owners of old coal plants with no acknowledgement of who will pay the bill. EPA provides anecdotes to support its claim that coal plant owners have supposedly decided to not improve plant operating efficiency because they would need to get an air permit and might be required to install modern air pollution controls as many other coal plant owners have already done. This should not justify excusing coal plant owners from new source review requirements. The only time this change matters is when a source is actually going to increase its emissions of air pollution by a significant amount.

EPA’s own analysis shows that this proposal puts the health and safety of families and communities at risk from increased pollution. If the ACE proposal is adopted and finalized, by EPA’s own calculations that could lead to as many as 1,630 early deaths per year in 2030 compared to leaving the Clean Power Plan in place.

ELPC will be submitting additional written comments to the docket. This proposal to replace the Clean Power Plan undermines EPA’s core mission of protecting the public and our environment from harmful air pollution under the Clean Air Act. It should be withdrawn.

It’s time for America to move forward not backwards with clean energy solutions to our climate change problems. Thank you for your consideration.

U.S. Environmental Protection Agency’s Misguided New Oil & Gas Proposal Weakens Strong Methane Reduction Standards that Avoid Waste and Protect Public Health and Our Environment

FOR IMMEDIATE RELEASE

September 10, 2018

Contact:
Judith Nemes, Environmental Law & Policy Center, JNemes@elpc.org (312) 795-3706

U.S. Environmental Protection Agency’s Misguided New Oil & Gas Proposal Weakens Strong Methane Reduction Standards that Avoid Waste and Protect Public Health and Our Environment   

STATEMENT BY HOWARD A. LEARNER EXECUTIVE DIRECTOR, ENVIRONMENTAL LAW & POLICY CENTER

In response to the Trump Administration’s proposed rollback of existing methane waste reduction standards in connection with oil and gas drilling across the Midwest and the country, Environmental Law & Policy Center Executive Director Howard Learner said:

“The Administration’s ideology is trumping common sense methane reduction standards that avoid energy waste and protect the public and our environment from dangerous smog-forming pollution. The current standards call for the use of known technologies and good industry practices to reduce wasteful methane leaks. The new proposal would allow more methane leaks that harm human health and our climate, and waste energy resources.

“The existing EPA standards for new and modified sources of dangerous pollution in the oil and gas industry resulted from an extensive public process and include reasonable cost-effective measures that some companies are already using and some states are already requiring. One study concluded that compliance with the existing standards would generate nearly 5,400 jobs annually in leak detection to reduce emissions at covered facilities. The Trump Administration is again proposing to weaken a sensible federal standard that avoids energy waste and protects public health from smog and reduces harmful climate change pollution,” Learner said.

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View the EPA’s proposal here.

Daily Herald: In Transit: App for Route 53 Extension Feedback Takes Flak

September 3, 2018

In Transit: App for Route 53 Extension Feedback Takes Flak 
By Marni Pyke

If the Founding Fathers had used Poll Everywhere at the Constitutional Convention in Philadelphia — would the final result be a better Constitution?

It might have depended on how fast they could type.

Illinois tollway consultants are using Poll Everywhere, a web-based audience participation system, at meetings with a group of local officials and others advising the agency on whether to extend Route 53 into Lake County.

The question has roiled Lake County for years, dividing residents over weighty problems like right of way, traffic, pollution and cost.

At a meeting Thursday, those divisions extended to use of the smartphone app to conduct the meeting, with some opponents of the new highway saying the technology is silencing their voices.

“I am extremely frustrated with how the tollway has engaged the stakeholders overall,” said Mayor Joseph Mancino of Hawthorn Woods, which could be bisected by a Route 53 extension. “Not only is the application unstable at best, it severely limits our input and quite frankly is a bit insulting to the stakeholders who are forced to use it.”

The tollway “wants to be able to parse through and say, ‘this is what people said,’ but that’s not what you do at a meeting where you want to have stakeholder participation,” stakeholder and Environmental Law and Policy Center chief Howard Learner said.

 

READ FULL ARTICLE

Detroit Free Press OpEd: President Trump’s War on the Great Lakes

 

August 30, 2018

President Trump’s War on the Great Lakes

OpEd

By Howard Learner

Summertime reminds us that the Great Lakes are a great natural treasure. Forty-two million people rely on this freshwater for safe drinking water supplies, but it’s more than that. The Great Lakes is where we live, work and play.

President Donald Trump doesn’t seem to get it. He won the 2016 election in the Great Lakes states, but Trump’s policy shifts and budget cuts amount to a war on the Great Lakes. The President’s budgets have proposed to zero-out or cut 90% of funding for the successful Great Lakes Restoration Initiative. Congress has twice rejected those cuts and restored full funding of $300 million annually.

The Department of Commerce is proposing to cutting the acreage of the popular Thunder Bay National Marine Sanctuary in Lake Huron along the Alpena to Mackinaw City shoreline. The EPA is attempting to roll back common-sense Clean Water Act standards that protect safe clean drinking water. What is President Trump thinking?

Both Michigan Republican and Democratic leaders have publicly disagreed with these misguided proposals. So have business, civic and environmental groups. Protecting the Great Lakes is bipartisan and nonpartisan.

The Great Lakes are a global gem. They contain 21% of the planet’s fresh water supply and provide a rich aquatic habitat for many species. The Great Lakes support a $7 billion annual fishing industry, and draw tourists who support shoreline communities’ economies.
Military analysts say future wars will be fought over water. Fresh water availability is our region’s competitive advantage. We can’t afford to mess it up. So, why this war on the Great Lakes?

First, the Great Lakes Restoration Initiative is a common-sense program that supports shoreline and wetlands protection projects, keeping out invasive species and reducing harmful algae blooms. Congress has again rejected the President’s budget cuts and restored full funding for this important program. The White House’s response: a new Statement of Administration Policy opposing this funding. The bipartisan Congressional delegation and Governors strongly disagree.

Second, the Department of Commerce continues to “review” the Thunder Bay National Marine Sanctuary, the nation’s only such freshwater preserve, and proposes to cut its size down by 90% from 4,300 to 448 square miles. Six Michigan Congress members wrote to Commerce Secretary
Ross explaining the economic, tourism and ecological value of this National Marine Sanctuary, which is a source of pride and income to northeast Michigan shoreline communities.

The Thunder Bay National Marine Sanctuary draws visitors to explore “Shipwreck Alley” where 100 ships rest on Lake Huron’s bottom, and learn about Great Lakes maritime history. It’s not controversial. Gov. Snyder formally requested that Secretary Ross end the review and leave the Sanctuary boundaries alone, but the Secretary denied that request. Under the National Marine Sanctuaries Act, an adjacent state’s governor can veto a boundary change. Gov. Snyder should publicly announce that he’ll do so, and call on governor candidates Schuette and Whitmer to agree.

Third, the Trump EPA is rushing to rollback clean water standards that protect safe drinking water and preserve fish and wildlife habitat. Likewise, in federal court, the EPA is resisting sensible regulatory standards to reduce agricultural runoff pollution that causes toxic blue-green algae blooms in Lake Erie, which threaten drinking water for 500,000 people in the Toledo area and harm commercial fisheries.

Good policy is good politics. The battle for Great Lakes protection is well worth fighting for and winning, but it shouldn’t have to be fought. The public and wise political leaders know better

READ OpEd HERE

Chicago Tonight: How Healthy is Lake Michigan? A Checkup on the Great Lakes

How Healthy is Lake Michigan? A Checkup on the Great Lakes
By Nicole Cardos

When it comes to the health and maintenance of Lake Michigan, some environmentalists, property owners and even surfers have expressed their concerns.

Some of those concerns: toxins, the Foxconn deal in Kenosha and rising lake levels.

“Last year, the amount of water released from Lake Superior into lakes Michigan and Huron was the highest in 32 years,” the story states.

But that transfer of water is also due to the fact that Lake Superior is geographically higher than lakes Michigan and Huron, said Howard Learner, president and executive director of the Environmental Law and Policy Center. On top of that, Lake Michigan is self-contained.

“Huron has an outlet and water makes its way to Erie,” Learner said. “Michigan is a big bathtub.”

WATCH VIDEO CLIP

Cleveland.com: FES Nuclear Decommissioning Funds Inadequate, Consumer Groups Tell NRC

June 19, 2018
FES Nuclear Decommissioning Funds Inadequate, Consumer Groups Tell NRC
By John Funk, The Plain Dealer

CLEVELAND, Ohio — The trust funds that FirstEnergy created years ago to pay for the demolition of its nuclear power plants and clean-up are no longer adequate, a coalition of consumer and environmental groups is arguing today at the Nuclear Regulatory Commission.

Citing research done by an independent investment consulting company, lawyers for the Midwest-based Environmental Law and Policy Center and a veteran nuclear reactor expert have petitioned the NRC to take another look at the trust funds.

The NRC’s Petition Review Board is not expected to make a decision on the ELPC request immediately, said an agency spokesman.

The ELPC is arguing that as of Dec. 31, 2016, the trust funds were nearly $2.75 billion short. That’s the last publicly available decommissioning fund data.

And that date was before FENOC and plant owner FirstEnergy Solutions filed for Chapter 11 bankruptcy protection from creditors who were owed more than an estimated $2 billion on March 31 of this year.

Still, on April 4, the NRC issued a statement declaring that the company’s decommissioning funds met NRC regulations.

A spokesman for FES/FENOC had no comment, other than to cite the April 4 NRC statement.

Howard Learner, a lawyer and executive director of the ELPC, said the announced shutdown of the power plants by 2021 means the funds will have even less time to grow before they are needed to pay for decommissioning.

He said the shortfall will probably mean that the company will delay decommissioning the reactors after it shuts them down and instead move them into an NRC category called SAFSTOR.

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Chicago Tribune: Environmentalists Appeal Ruling on Illiana Toll Road

June 13. 2018
Environmentalists Appeal Ruling on Illiana Toll Road
By Susan DeMar Lafferty

Environmental groups filed a petition to ask the Illinois Appellate Court to reconsider its recent ruling against them regarding the proposed Illiana toll road.

According to the appeal this week, the Chicago Metropolitan Agency for Planning, the Metropolitan Planning Organization and the Illinois Department of Transportation failed to comply with the language of the Illinois Regional Planning Act, which states that the CMAP Board “shall” provide its “prior” “approval” of a transportation project before final approval by the MPO.

Howard Learner, executive director of the Environmental Law and Policy Center, who is representing Openlands and the Sierra Club, cited several other court cases to support their claim that the word “shall” is mandatory, not discretionary, as the court ruled.

The Illiana, a proposed 47-mile toll road connecting I-55 in Wilmington to I-65 near Lowell, Indiana, has been a controversial road project that was shelved by Gov. Bruce Rauner when he took office in January, 2015.

Environmentalists have opposed the toll road project, saying it would harm the Midewin National Tallgrass Prairie since the proposed route skirted its southern border, and calling it a “financial boondoggle” for the state.

In 2013 and 2014, IDOT sought to amend the “GO TO 2040” long range transportation plan to include the Illiana Tollway project and it had been debated by both CMAP and MPO at that time, with CMAP twice opposed to including the amendment in its 2040 plan and MPO supporting it.

Environmentalists filed the initial lawsuit in 2014, challenging the approval process for including the Illiana in the “GO TO 2040” plan.

According to the recent court petition, federal law requires that transportation projects must be approved by the MPO before they become eligible for federal funding.

CMAP was created by the Illinois General Assembly in the Illinois Regional Planning Act to ensure that transportation planning for the Chicago area is carried out in conjunction with comprehensive planning for land use, economic development, environmental sustainability and quality-of-life issues, the petition stated.

The act specifically states that the CMAP board “shall” first provide its “prior” “approval” of transportation projects and plans before the final approval by the MPO Policy Committee, according to the court document.

In the petition for a rehearing, Learner cited several cases in which the court ruled that “shall” means mandatory, not discretionary.

The Illinois Supreme Court is now hearing Oswald verse Beard, and that case should also define the meaning of “shall,” according to Learner.

“The Illinois General Assembly clearly intended to create a nondiscretionary, mandatory duty” when it wrote the Regional Planning Act, the petition stated.

On the other hand, the word “may” is used numerous times throughout the act, making the contrast “clear and easily discerned,” the document stated.

The appellate court “misconstrued the relationship” between CMAP Board and MPO and the nature of the GO TO 2040 Plan and the Illiana Tollway, it said.

“The entire purpose of GO TO 2040 as a regional comprehensive plan would be negated” if the MPO were able to push through projects “inconsistent with the other planning purposes of GO TO 2040,” the court document stated.

In the petition, Learner asked for a rehearing, or as an alternative, hold this request for a rehearing until after the state supreme court issues a ruling in Oswald verse Beard.

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