Howard’s Blog

Ohio Nuclear Plant Decommissioning, Clean Car Standards, Route 53 Tollway Extension in Lake County, IL., & EPA Ozone Non-Attainment Standards

ELPC Breaking News – Actions and Decisions on Multiple Fronts – Ohio Nuclear Plant Decommissioning, Clean Car Standards, Route 53 Tollway Extension in Lake County, IL, and EPA Ozone Non-Attainment Standards

To ELPC Colleagues and Supporters:  There is a lot happening – fast – at ELPC.  Four important actions yesterday on different fronts.  ELPC’s talented staff is drinking out of a firehose and playing to win.

  1. Good News on ELPC petition to the U.S. Nuclear Regulatory Commission challenging First Energy Solutions’ nuclear decommissioning shortfalls as the company is in bankruptcy. We just received word that ELPC’s 2.206 citizen petition cleared the first step of the NRC review process. The NRC’s Petition Review Board (PRB) met and decided to accept our petition for review.   Notably, they accepted ELPC’s petition in entirety—no parts of it were rejected.  The next step is for the PRB to substantively review the petition and come up with recommendations for action, which it will send to the Director.  The Director ultimately makes the final decision on what actions, if any, the NRC will take against the licensee.   Kudos to ELPC attorneys Andrene Dabaghi and Margrethe Kearney.

 

  1. Bad News:  The Trump Administration announced its misguided attempt to rollback federal clean cars standards and (probably unconstitutional) attempt to constrain California’s and 12 other states’ “waiver” to adopt strong state standards.  As the transportation sector has passed the energy sector for carbon pollution in the United States, the federal and state fuel efficiency standards are vital to save consumers money at the gas pump, drive technological innovation in vehicle manufacturing to keep American manufacturing competitive, gain manufacturing jobs of the future for American workers, reduce American imports of foreign oil and avoid pollution.  ELPC will be among the lead groups nationally challenging the proposed new weaker DOT/EPA clean car standards in both the court of law (comments to US Dept. of Transportation and, then, likely litigation in the federal courts) and in the court of public opinion.  Please see ELPC press release criticizing this Trump Administration regulatory rollback.  (“Trump Administration Reboot of Fuel Economy and Pollution Standards is a Misguided Step Backwards While Global Competitors Keep Moving Forward”).   ELPC Senior Law Fellow Janet McCabe and ELPC Executive Director Howard Learner will be doing a “breaking news” briefing via conference call for ELPC colleagues, donors and friends today at 10:00 am. (Register to join the briefing if you’d like.)

 

  1. ELPC and ten environmental and civic group partners are fighting back and winning against the Illinois Tollway Authority’s attempt to short-circuit and play “hide the ball” on the NEPA Environmental Impact Statement (EIS) process for the economically unsupportable and environmentally destructive Route 53 Tollway Extension in Lake County. As ELPC Board Chair Harry Drucker put it, this “zombie” bad tollway proposal keeps coming back.  While the Chicago Metropolitan Agency for Planning is moving to put on the brakes by downgrading the proposed Route 53 Tollway Extension in Lake County from a priority project to non-priority status, the Illinois Tollway Authority is spending $25 million to accelerate the EIS process.  On Wednesday, ELPC attorneys Howard Learner and Rachel Granneman and partners sent a letter to the Illinois Tollway Authority challenging the legality of the EIS process, and yesterday, the Illinois Tollway Authority backed off, saying that would extend the comment period on the EIS scoping comments to late September.  Please see Greg Hinz’s good article in Crain’s Chicago Business here and pasted below.

 

  1. New ELPC Litigation to Protect Healthier Clean Air in Illinois, Indiana and Wisconsin:  ELPC and the Respiratory Health Association (RHA) yesterday sued the U.S. Environmental Protection Agency in U.S. Court of Appeals for the D.C. Circuit, challenging the EPA’s final ozone air health standard rule, published in June 2018, that excluded certain areas in Illinois, Indiana and Wisconsin from the Chicago, Milwaukee and St. Louis “non-attainment” areas that have smog levels above the 2015 ozone standard.  ELPC’s press release explains:  “EPA has sadly disregarded the plain facts and sound science in making these designations,” said Howard Learner, ELPC’s Executive Director. “EPA has not followed the letter or the spirit of the Clean Air Act and has excluded areas involving unhealthy air quality for millions of Midwesterners.  Cleaner air is essential to public health and a strong economy in our region.”   The Clean Air Act requires EPA to designate non-attainment areas in counties where air quality fails to meet federal health standards for ozone and where local air pollution contribute to unhealthy air quality. The states must then take steps to reduce emissions that cause smog.  In 2015, EPA issued a more protective ozone air health standard, which triggered a process to identify violating areas so that clean air planning could begin.  In the Chicago, Milwaukee and St. Louis areas, EPA originally proposed more comprehensive non-attainment areas, but then excluded certain areas in its June 2018 final decision in response to opaque last-minute requests from Governors Rauner and Walker.  ELPC attorneys Scott Strand and Rachel Granneman are litigating this case with policy and technical engagement from Janet McCabe.  Please see Michael Hawthorne’s good article in the Chicago Tribune here.

ELPC is fully engaged both on offense and defense to protect the Midwest’s environment, public health and vital natural resources.  Please let me know if you have any questions or suggestions.

Best wishes, Howard

Howard A. Learner

Executive Director

Environmental Law & Policy Center

 

My end-of-year letter

Elections produce change, they can shock the system, and they create new challenges and, often, unanticipated opportunities.  President-elect Trump does not share ELPC’s values and that creates enormous challenges.  Some fundamentals, however, still present positive opportunities in the Midwest states where ELPC focuses, leads and knows how to get things done.

The Midwest is the nation’s most pivotal region for transitioning to a clean energy economy and is the nation’s transportation crossroads where vehicle and mobility innovations can make the most difference in the ways that we live and work.  Cleaning up the energy and transportation sectors are the most important climate change solutions that are needed to save our planet.  Likewise, we must protect the Great Lakes, which are 22% of the world’s freshwater resources, supplying drinking water to 42 million people.  The leadership gap and gridlock in Washington DC makes clear that states and cities are key places for ELPC to drive environmental progress.

ELPC is effective.  We advance savvy policy changes that combined with technological innovations are driving energy markets to accelerate solar energy, wind power, battery storage and energy efficiency.  We are seizing opportunities to transform the transportation sector with innovative new electric and driverless cars and trucks that pollute less and smart mobility options including high-speed rail, better public transit and shared vehicles.  ELPC public interest attorneys are winning strategic litigation with our conservation partners to protect the Midwest’s special wild and natural places – the Midewin National Tallgrass Prairie, Sylvania Wilderness, Great Lakes and Northwoods.

Your support will help ELPC win in 2017, advancing cleaner energy in the Midwest, accelerating transportation innovations, and protecting the great lakes, rivers, forests and prairies that we love. Please read the enclosed report, consider ELPC’s track record of success, and make a contribution by phone, mail or at ELPC.org/donate.

ELPC shows that smart, strategic legal and policy advocacy can both improve environmental quality and grow the Midwest’s economy. ELPC’s teams of expert public interest attorneys, M.B.A.s, policy advocates, communications specialists and science advisors play to win and know how to get things done – truly making a difference for a better world.

ELPC is on the Cusp of Transformational Electricity Policy, Market and Technological Changes, Leading the Midwest to a Clean Energy Future, State by State.  New solar energy, wind power, battery and lighting technologies can help clean up and transform the electricity sector.  ELPC attorneys, M.B.A.s and policy experts are driving new pro-innovation and pro-competition policies to remove barriers and open up markets for solar, wind and storage technologies before the state public utilities commissions where “the rubber hits the road.”  We are playing both offense and defense to accelerate clean renewable energy across the Midwest.  The stakes are high for our future energy mix and climate change solutions.

We Can Make Solar + Batteries = 24/7 Electricity Market Game Changer. Midwest energy policies do not support (and in some ways impede) widespread implementation of new solar energy and storage technologies that would provide both economic benefits – less expensive ways of achieving reliability for business and residential consumers – and environmental value as a very low-carbon part of the electricity system when grid integrated.  ELPC is also working at regional transmission organizations to design policies for demand response and battery storage that provide grid support, enhance reliability, and reduce need for old coal plants.

ELPC Is Taking on Peabody Energy – the Biggest Coal Mine Company.  ELPC attorneys are making progress before the U.S. Bankruptcy Court in challenging Peabody Energy’s flawed “self-bonding” practices — a promise to pay, without guarantee — for its mine reclamation obligations. Peabody and other coal mine companies must fulfill their environmental cleanup responsibilities and not shift their costs onto taxpayers.

ELPC Is Winning in the Courts to Clean Up or Retire Coal.  ELPC won a federal district court decision requiring the Edwards coal plant in Peoria to reduce dangerous soot pollution, and ELPC attorneys helped stop First Energy’s and AEP’s requested bailouts of uneconomic old coal plants in Ohio. Because of coal plant retirements, Illinois is already 81% and Michigan is 90% of the way toward achieving their full Clean Power Plan carbon pollution reductions by 2030.

ELPC is Accelerating Electric Vehicles (EV) and “Driverless” Car Policies to Steer the Right Course to Clean Up and Rapidly Transform the Transportation Sector.  We are exploring ways to develop a modern EV fast-charging network that brings together homes, public sites and fast-charging stations powered by solar or wind energy along major Midwest interstates.  ELPC is leading the national environmental advocacy with government agencies to integrate greenhouse gas reduction standards into emerging federal safety policies for driverless vehicles.  Done right, the technological advances spurring development of driverless cars create opportunities to lower traffic fatalities, optimize fuel efficiency to produce less pollution, and reduce congestion.  That’s a winning strategy.

ELPC – the Go-To Public Interest Litigation Attorneys for Conservation Partners Working to Protect the Midwest’s Wild and Natural Places When Serious Threats Emerge:

  • We’re Protecting the Sylvania Wilderness, a beautiful 18,327-acre area of interconnected lakes and old growth trees along the Michigan-Wisconsin border where people canoe, fish, hike, camp and enjoy the quiet of the outdoors.  ELPC attorneys represent environmental groups intervening in litigation brought by private plaintiffs seeking to overturn the Forest Service’s limits on “grandfathered” uses of loud gas-powered motorboats.  In June, ELPC won a favorable Federal District Court summary judgment decision to limit large motorboat uses that disturb the wilderness experience and potentially bring in invasive species.  If upheld on appeal, that decision will also set a precedent for protecting other Midwest National Parks, Lakeshores and Wilderness Areas.
  • We’re Ditching the Illiana Tollway Boondoggle and Protecting the Remarkable Midewin National Tallgrass Prairie. The Illiana Tollway is a fiscal folly, undermines sound regional planning, and would harm wildlife and ecological values in the 19,000-acre Midewin National Tallgrass Prairie. ELPC attorneys representing the Midewin Heritage Association, Openlands and Sierra Club have now twice prevailed before the Federal District Courts, which have declared that the federal and state transportation agencies’ approvals of the Tier 1 and Tier 2 Environmental Impact Statements and Record of Decisions violated NEPA and are invalid.  ELPC’s media outreach has secured 20 editorials against the Illiana “road to nowhere” during Illinois’ fiscal crisis when there are much higher priorities for limited transportation infrastructure funds to enable badly-needed fixes for transit and commuter rail, intercity higher-speed rail, and bridge repairs.  It’s time to finally bring the proposed Illiana Tollway to an end.
  • We’re Protecting Clean Water in the Great Lakes and Midwest Rivers. The Great Lakes Restoration Initiative has bipartisan support and sustained appropriations, which have largely avoided political squabbling. The projects supported by close to $2 billion of federal funds over the past seven years are achieving real results for restoring the Great Lakes ecological system. In Illinois, ELPC attorneys won a state court decision overturning agencies’ failure to establish sound phosphorus standards and a separate permit appeal challenging discharges of superheated water into Lake Michigan.  In Iowa, ELPC attorneys won a court decision reversing an agency’s flawed “antidegradation” standards that should keep clean water clean.

ELPC believes in the core principle that environmental progress and economic growth can be achieved together, and we put that sustainability principle into practice every day. Our multidisciplinary staff teams of public interest attorneys, M.B.A.s, policy experts and communications specialists are fully engaged across the Midwest, and we’re achieving progress.  ELPC’s strong Board of Directors, scientist advisors, and next-gen and state advisory councils expand our capabilities, talent and networks to succeed.   It isn’t easy; real change never is. We don’t give up. We play to win and work with diverse partners to accomplish results that matter.

Thank you for your engagement and your support.  Please consider making a contribution by mail, phone or online at elpc.org/donate to support ELPC’s effective work to seize opportunities for transformational changes and achieve a brighter Midwest future for all.

Litigation Victory! Federal Court Finds that Dynegy’s Edwards Coal Plant Violates Law on Particulate Pollution and Opacity

Victory! ELPC and our partners won a major victory as Federal District Court Judge McDade just issued a very favorable decision granting us summary judgment in our lawsuit challenging excessive particulate emissions, which exacerbate respiratory problems, from the old Edwards coal plant near Peoria, IL. The Court’s opinion holds that a Dynegy subsidiary, the plant owner, violated the Edwards coal plant’s operating permit thousands of times over seven years – emitting an illegal amount of harmful soot pollution.

ELPC attorneys Jenny Cassel and Justin Vickers represent client plaintiffs Respiratory Health Association and Sierra Club, and we are working with co-plaintiff Natural Resources Defense Council. Together, we alleged that the Edwards coal plant was not properly controlling soot pollution – also known as “particulate matter,” which is associated with asthma, decreased lung function, and other respiratory problems.

This important legal victory reinforces the ability of environmental advocacy organizations to bring and win citizen enforcement lawsuits against polluters, even when state agencies do not enforce the permits they issue. It’s time for Dynegy to recognize that if it is going to continue to operate the Edwards plant, it must follow the law by installing sufficient modern pollution control equipment.

Going forward, the case will shift to a “remedy” phase for the Judge to determine what steps Dynegy must take to reduce pollution and comply with its permit, as well as what penalties should be paid for violations.

Kudos to ELPC attorneys Jenny Cassel and Justin Vickers and our partners who all worked hard on this case. This court decision will reduce pollution and set a precedent for environmental enforcement lawsuits brought in the public interest.

Take Action: Tell Bill Schuette to Drop His Litigation to Stop Sensible Mercury Pollution Reduction Standards that Protect Children’s Health

What is Michigan Attorney General Bill Schuette thinking? He seems to somehow believe that more mercury pollution in Michigan’s water and in your food is just fine.  Attorney General Bill Schuette continues to lead endless litigation to stall and delay the important federal Mercury & Air Toxics Standards (MATS), which protect children’s health, clean air and safe water. Have you had enough? Click here to take action.

Let’s look at the facts.

  1. Mercury is a potent neurotoxin that is harmful to children, impacting fetal brain development and leading to harmful effects on language, memory, visual-motor skills and attention.
  2. The Mercury & Air Toxics Standards require utilities to install widely available mercury pollution reduction control technology, and that limits both in-state mercury emissions as well as pollution that often drifts across state lines.
  3. Michigan coal plants have already stepped up to comply with these standards, so why is AG Bill Schuette still leading the federal litigation against those standards?
  4. Since December, AG Bill Schuette’s repeated appeals have been rejected by the U.S. Supreme Court and the U.S. Court of Appeals for the DC Circuit. Enough is enough.
  5. Michigan Governor Rick Snyder has “disassociated” the State of Michigan from these appeals. AG Bill Schuette is doing these appeals of the mercury pollution standards on his own.
  6. The implementation of MATS is moving forward, even as AG Bill Schuette’s latest appeal proceeds.

Bottom line: AG Bill Schuette should drop his litigation, which is being fought with taxpayer dollars and at the expense of public health. Let’s work together to hold AG Schuette accountable.

Michigan’s leaders should stand up to better protect children’s health, safe water and safe food. Please ask AG Schuette to drop his litigation against sensible mercury pollution standards.

ELPC Gains Favorable Bankruptcy Court Ruling for Actions to End Peabody’s Flawed “Self-Bonding” of Its Mine Reclamation and Environmental Cleanup

ELPC has achieved a breakthrough in our advocacy campaign challenging Peabody Energy’s flawed “self-bonding” of its coal mine reclamation and environmental clean-up requirements under the Surface Mining Control and Reclamation Act. We are seeking to avoid the risk that Peabody will evade its financial responsibility and force the public to pay for the coal mine clean-up costs. Taxpayers should not be left holding the financial bag for Peabody’s obligations.

The irresponsible practice of “self-bonding” is a coal mine company’s promise that funds will be available in the future, rather than setting aside actual funds or purchasing surety bonds, to pay for its mine reclamation and environmental clean-up responsibilities. Peabody Energy, the world’s largest private-sector coal company, filed for Chapter 11 bankruptcy earlier this year.

The U.S. Bankruptcy Court made two key rulings on July 20th in response to ELPC’s motions.

First, U.S. Bankruptcy Judge Barry Schermer ruled from the bench that ELPC has standing as a “party in interest” to engage before the bankruptcy court to seek to require Peabody Energy to fully comply with its responsibilities to pay for full and effective mine reclamation and environmental clean-ups at its coal mine sites. Peabody’s lawyers argued, in a remarkable 33-page brief, that ELPC lacked any standing to express our position on mine reclamation bonding. In short, Peabody essentially said that environmental organizations could not even question Peabody’s promises to return the land to its pre-mining condition. The Judge rejected these arguments in his opinion from the bench and subsequent Order.

Second, when a company is in bankruptcy, federal law places an “automatic stay” on some outside legal proceedings. The Court granted ELPC’s and the Western Organization of Resource Councils’ motion to lift the stay, to the extent that it applied, on our citizen complaints to require the Illinois, Indiana, New Mexco and Wyoming departments of natural resources and the federal Office of Surface Mining Reclamation and Enforcement to take action to make sure that Peabody provides sufficient funds for its mine reclamation.

These two rulings are significant. They put ELPC in a position to assert that sufficient funds be made available for mine reclamation and environmental clean-up at coal mines in Illinois, Indiana, New Mexico and Wyoming. And, as a practical matter, the Judge has made clear that these environmental responsibilities are on the court’s radar alongside the competing demands of Peabody’s creditors.

This is key progress in ELPC’s and our allies’ advocacy against Peabody’s irresponsible practice of self-bonding going forward. Stay tuned for more news to follow.

Victory! ELPC Wins Federal Court Case Protecting Michigan’s Pristine Sylvania Wilderness Area

Victory! This week, the Federal District Court ruled in favor of ELPC, our clients, and the U.S. Forest Service to uphold restrictions on the use of loud and disruptive gas-powered motorboats in the beautiful interconnected lakes of the Sylvania Wilderness Area, which includes 18,000+ acres of old-growth trees in Michigan’s Upper Peninsula near the Wisconsin border.

Federal District Court Judge R. Allan Edgar’s decision enables the U.S. Forest Service to enforce the laws to protect the Sylvania Wilderness as place to canoe, hike, camp and enjoy the quiet of the outdoors. The Court held that restrictions on large gas-powered motorboats “are precisely the type of regulation that Michigan courts have upheld as reasonable” and are rationally connected to achieving the goal of preserving Sylvania’s wilderness character.

ELPC attorneys represented Sylvania Wilderness Cabins, Friends of Sylvania, and the Upper Peninsula Environmental Coalition in this case. ELPC’s legal victory will help preserve pristine water quality, reduce the spread of damaging invasive aquatic plant species, and preserve the wonderful quiet and scenic enjoyment of this special natural place. This is an important court victory that sets a precedent for protecting the Sylvania Wilderness Area and other protected National Lakeshores and Wilderness Areas around the Great Lakes and Midwest.

Kudos to ELPC Staff Attorney Jen Tarr and ELPC Board member Bob Graham, who worked with me on this important case.

Best wishes and bravo all on this victory for the Midwest’s wild and special places!

Getting Real About Oil Prices and Impacts on Oil Pipelines

Bakken shale oil and Canadian oil production is falling, and pipeline companies are now biting the bullet and deferring projects. Here’s an update on oil prices, Bakken shale oil, Canadian tar sands, and the impacts on oil pipelines in the Midwest. Markets matter.

Today, the Nymex market price for West Texas Intermediate (WTI) crude oil is $29.57/bbl. That’s low, and many analysts believe that WTI oil prices will stay below $50 bbl, or go even lower, during the next two years.

Bakken Shale Oil – Fewer Rigs, Less Production, Weakened by Today’s Market Prices: North Dakota’s Bakken shale oil’s break-even prices are WTI $45-$50/bbl for the most efficient producers and WTI $50-$60/bbl for the rest of the producers. That depends on how rich the well is, how costly and efficient the company’s construction and operations are, and how close the rig is to infrastructure. Then, the Bakken shale oil must be transported by pipeline or rail to distant refineries in the Midwest or Texas.

The number of drilling rigs now operating in North Dakota is the lowest since July 2009, and, as production ends at some existing rigs, the rig count will likely decline further. According to the North Dakota Department of Mineral Resources, Bakken output fell to 1.15 million barrels a day in December, down 2.5 percent from the previous month and 6 percent below the all-time high in December 2014. Department of Mineral Resources Director Lynn D. Helms stated that oil production could fall to 1 million barrels a day by the end of 2016. According to Helms, oil production and service companies are planning more layoffs in the first half of 2016, and there could be additional bankruptcies in June 2016 when banks often recalculate their debt limits for oil companies.

Unless and until WTI oil prices reach $50/bbl, the rig count and production will continue to decline in Western North Dakota’s Bakken shale oil region.

Canadian Oil Sands – New Production Not Economical with Today’s Market Prices: Canadian tar sands’ break-even prices for new production are around WTI $80/bbl for the “best of the best,” WTI $90-$100/bbl for the “rest of the best,” and WTI $100+/bbl for the “rest of the rest.” Canadian oil production will stagnate until WTI oil prices reach at least $80/bbl. Some current oil sands drilling and production operations have enormous sunk costs and will continue to operate as a long-term play as producers wait out what they hope will be higher prices in 2-3 years.

Less Oil Production Means Less Need for New Pipelines: Financing for new North American oil pipelines is drying up until bankers and other investors see WTI prices rise and thereby lead to more oil production. For example, Enbridge Energy Partners just announced that its Sandpiper Pipeline Project (running from Bakken shale in Western North Dakota through Grand Forks and Northern Minnesota to the oil refinery in Superior, Wisc.) and the Line 3 Replacement Program (running from Alberta through Eastern North Dakota and Minnesota to the oil refinery in Superior, Wisc.), which were originally scheduled for completion by 2017 and 2018, respectively, will both be held back as construction delays “cause a shift in the in-service dates to early 2019 and increase costs for the [Line 3 Replacement] and Sandpiper projects.”

That’s the market situation. As vehicle fuel efficiency (mpg) for North American cars and trucks continues to improve, that will reduce demand for gasoline, as will longer-term trends of Millennials driving less. We’ll see if low gas pump prices, on the other hand, continue and result in more vehicle miles travelled.

Please let me know if you have any questions or suggestions. Oil prices and markets have changed dramatically in the past 15 months, and the consequences for oil pipelines are significant.

The Clean Power Plan Gets Fresh Air

As a public interest attorney and law professor, I’ve admired Justice Antonin Scalia’s strong intellect and passion, even if I don’t share his legal philosophy and sometimes think that his “vivid” writing style is neither civil nor constructive for the courts.  As a compassionate person, I join with others in mourning his passing.  As a dedicated environmentalist, I recognize the breath of fresh air that this turn of events infuses into the federal courts’ review of the Clean Power Plan, which is a vital legal building block for United States’ leadership to help solve global climate change problems.  In short, the Clean Power Plan now has a better chance of being upheld on appeal during the incessant litigation brought by coal companies and some states to stop it from ever taking effect.

The U.S. EPA’s Clean Power Plan is based on the Clean Air Act’s requirement that the agency must regulate to reduce pollution, including carbon dioxide, that endangers public health. In Massachusetts v. EPA (2007) and American Electric Power (AEP) v. Connecticut (2009), the Supreme Court upheld the EPA’s authority to regulate carbon dioxide and other greenhouse gas pollution under the Clean Air Act.  For the power plant sector, the Clean Power Plan sets overall pollution reduction targets to be achieved by each state and provides flexible approaches to accomplish the results.

The Clean Power Plan isn’t the only way for the United States to show leadership and meet its greenhouse gas pollution reduction commitments made at the Paris COP21 Climate Conference.  Rapid improvements in solar energy and wind power equipment and in energy efficiency technologies, including LED lighting and better ballasts, are transforming and cleaning up the electricity sector.  Congress recently extended the federal production tax credit for wind power and the federal investment tax credit for solar energy.  That supports investments and accelerated growth of these clean technologies.  These are important actions that can help hold down global temperatures and mitigate climate change.

The Clean Power Plan and these tax policies drive energy markets, and the clean technologies developed and deployed in the U.S. can be transferred to developing nations to help reduce global greenhouse gas pollution.  Whether carbon dioxide pollution is emitted in Indiana, India, or Indonesia, it has the same impact in heating the atmosphere.

On February 9th, the U.S. Supreme Court, by a 5-4 vote, issued an extraordinary stay, which suspended the Clean Power Plan while certain coal companies and some states litigate their appeals of the EPA’s rulemaking.  The U.S. Court of Appeals for the District of Columbia’s three-judge panel, which is hearing the appeal, had unanimously rejected the stay motion. Most experienced attorneys viewed the stay motion as a “Hail Mary” pass unlikely to succeed precisely because the Supreme Court had never granted such a motion in this type of case.  Now, the Court has done so in short order without much legal explanation.

That short 5-4 stay order was procedural and did not substantively determine the case.  The standards for a stay, however, require finding that the appellants demonstrate at least some reasonable possibility of success on the ultimate merits.  The Supreme Court’s shocking stay order not only indicated that there might be five Justices inclined to overturn the EPA’s Clean Power Plan, but sent a warning signal to the Court of Appeals.

Now, the odds look better for the Clean Power Plan on appeal. Counting Supreme Court votes is an uncertain venture, but with Justice Scalia’s passing, the numbers have shifted. Justices Breyer, Ginsburg, Kagan and Sotomayor, who dissented on the Court’s granting of the stay motion, indicated their support for the Clean Power Plan as do their votes in previous cases. That’s four votes.

On the other side, Justice Kennedy previously joined the majority decisions in Massachusetts v. EPA and AEP v. Connecticut, but surprised many with his vote to grant the stay in the Clean Power Plan case.  His vote on the merits is up for grabs. Chief Justice Roberts joined Justice Ginsburg’s majority opinion in AEP, presumably on stare decisis grounds, after dissenting from the majority in Massachusetts.  Justices Alito, Scalia and Thomas all voted to grant the stay and were widely viewed to be likely votes against upholding the Clean Power Plan if and when the appeal reaches the Supreme Court on the merits.

The lineup of votes now shifts. Remember that much can change, just as it has with Justice Scalia’s passing.  The majorities on this landmark environmental case are fragile.

Scenario #1:  President Obama’s nomination of a new Justice is confirmed by the U.S. Senate, and that appointee provides a fifth vote joining with at least the current four Justices likely to support the Clean Power Plan.  Yes, Senate Majority Leader Mitch McConnell and other Republican Senators and Presidential candidates immediately leaped up to announce that they would stop any nomination for the next 11 months.  President Obama announced that he will move forward to “fulfill my constitutional responsibility to nominate a successor in due time.”  Senate Minority Leader Harry Reid urged the President to make his nomination soon.

The negotiations will soon begin.  President Obama is the President for the next 11 months, and he is not going to sit on his constitutional responsibility and his opportunity to nominate a new Justice to the U.S. Supreme Court.  The “typical” Senate hearing process on new Supreme Court nominees has been about 70 days in recent years.  The longest hearing processes have been around 108 days.  The Obama Presidency continues for 340 days.

There will be intense political pressure on the Senate Republicans, especially those who are candidates for re-election in challenging races, to not be deemed obstructionists with control of the Senate at stake in the November 2016 elections.  If President Obama nominates a “confirmable” Justice, there may well be a fifth vote to upheld the Clean Power Plan when the case reaches the Court in 2017.  It won’t be easy, but it may be doable.

Scenario #2:  OK. Senator McConnell and his fellow Republican Senators may stop the confirmation process no matter what.  The D.C. Court of Appeals will be hearing oral argument in the Clean Power Plan case in early June 2016.  If the three-judge panel upholds the Clean Power Plan – and the full Court of Appeals either denies rehearing en banc or upholds after an en banc hearing – then the first question is whether the Supreme Court grants a petition for certiorari.  Almost certainly, yes.  This is the sort of nationally important case that the Court usually decides.  The second question is how the Supreme Court will rule on the merits:  It would take five votes to reverse the Court of Appeals, and it’s hard to see how to get there among the current eight Justices.  On the other hand, if Justice Kennedy joins with Justice Ginsburg and three other Justices, as he did in Massachusetts and AEP, then that would provide a 5-3 majority to uphold the Clean Power Plan.

Scenario #3:  Let’s assume that Senator McConnell and his fellow Republican Senators stop the confirmation process no matter what.  The next President will nominate the ninth Justice.  Who’s the next President?  Who knows.

Who’s elected President?  Is it a Democrat who supports the Clean Power Plan, or does a Republican President attempt to undo the Clean Power Plan and appoint a new Justice who reflects Justice Scalia’s views?  Who controls the Senate following the November 2016 elections – Democrats or Republicans?   What if Congress decides to amend the Clean Air Act or, as some hope, enact a carbon fee to replace the Clean Power Plan?  What if another Justice retires or passes, thereby creating an additional vacancy and further shifting the alignment of votes?

Much can change before the Clean Power Plan case probably reaches the Supreme Court in 2017, but one thing is clear:  Justice Scalia’s unexpected and sudden passing appears to shift the votes and change the dynamics of judicial review in favor of the Clean Power Plan.  For now.

More Electric Vehicles In Dealership Showrooms Than Ever Before

EVs2016Are you considering a new electric vehicle? There are 16 different EV models available now in the Midwest.

ELPC has gathered intel on these EV choices. Use our interactive online tool to compare them based on charging time, driving range, price, and other factors to find the EV that’s right for your lifestyle.

PlugInChicagoMetro.org also includes information about charging options and incentives from both utilities and states.

ELPC is working to advance policies that support electric cars, plug-in hybrids and charging infrastructure in order to reduce our dependence on foreign oil, produce less pollution, save consumers money as gas prices fluctuate, and create job growth potential in the auto industry.

Consumers are increasingly interested in electric cars, but Midwest-specific information is often hard to come by as EV manufacturers focus first on California and the East Coast. The tools on ELPC’s PlugInChicagoMetro.org are specifically designed for Chicago and Midwest consumers as they make car-buying decisions.

Update: Sen. Kirk Votes Against Resolution to Disapprove the Clean Power Plan

You helped make a difference. Senator Kirk sadly agreed to sponsor a Congressional Review Act resolution to stop the EPA’s Clean Power Plan standards from taking effect. That would undermine important public health protections and new clean energy development.

ELPC asked our e-activists to call Senator Kirk’s office requesting that he reconsider his position. He did. We appreciate that Senator Kirk changed his position and yesterday voted against the resolutions (S.J. 23 & 24) to disapprove the Clean Power Plan.

President Obama has made clear that he’ll veto the resolutions, which passed the Senate by a 52-48 vote. It’s very unlikely that there will be the necessary 67 votes in the Senate to override the President’s veto. The Clean Power Plan will go forward.

Your citizen engagement helped make a difference in persuading Senator Kirk to change his mind and support the Clean Power Plan this time. We appreciate his votes yesterday. Thank you for your participation and support.

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