February 16, 2022

Howard A. Learner

Two Big Wins in Court for Indiana’s Environment!

We all know that Indiana is a tough place to achieve environmental progress. That’s why I’m both excited and proud to let you know about two big ELPC litigation victories in Indiana over the past two weeks.

Federal Court Victory on ELPC’s Lawsuit Against Cleveland-Cliffs Steel Mill for its Pollution into Lake Michigan

On Monday, ELPC public interest attorneys achieved a big litigation victory protecting Lake Michigan, the environment, and Northwest Indiana residents. Plaintiffs Environmental Law & Policy Center, Hoosier Environmental Council, the U.S. Government and the State of Indiana entered into a consent decree with Defendant steel mill owner Cleveland-Cliffs to remedy its excessive pollution into Lake Michigan. The consent decree was filed in the United States District Court for the Northern District of Indiana, and it should serve as a cautionary tale for other potential corporate polluters.

The Burns Harbor steel mill was owned by ArcelorMittal when ELPC attorneys filed a citizen enforcement lawsuit on behalf of Plaintiffs ELPC and HEC in 2019. The mill exceeded its Clean Water Act permit limits on discharges of ammonia and cyanide dozens of times, including a devastating spill in August 2019 that killed thousands of fish and closed Lake Michigan beaches. The steel mill pollution goes into the east branch of the Little Calumet River, which flows directly into Lake Michigan.

The consent decree includes:

1. Comprehensive operational and equipment upgrades to the steel mill to prevent future ammonia and cyanide violations.
2. $3 million in civil penalties split between Indiana and the U.S. Treasury.
3. Two new significant environmentally beneficial projects:

• • 127 acres of Cleveland-Cliffs property, appraised at $2 million, will be transferred into a land trust for restoration. The property will then be added to the adjacent Indiana Dunes National Park for public use and enjoyment.
  • The facility will be required to do new water quality monitoring of Lake Michigan during the 2022 and 2023 summer months.

4. Improved public notification procedures and requirements if/when spills occur. ArcelorMittal delayed notifying public officials and the general public when the August 2019 excessive discharges of ammonia and cyanide occurred. The facility notified several days later and only after 3,000 dead fish showed up floating in the lake.

Be sure to check out the media coverage in the Chicago Sun-Times, Chicago Tribune, Indy Star, and WBEZ, among others.

Kudos to the ELPC litigation team of Rob Michaels, Kiana Courtney, Jeff Hammons, yours truly, with Judith Nemes on the communications front.

This is big victory for protecting Lake Michigan, safe clean water, and Northwest Indiana communities.

Winning in the Court of Appeals Overturning Unfair Tariff for Rooftop Solar Panels

Two weeks ago, ELPC achieved a big win at the Indiana Court of Appeals in our challenge to the Indiana Utility Regulatory Commission’s approval of utility Vectren’s “excess distributed generation” tariff that unfairly shifted the economics for rooftop solar panel owners. Vectren would charge homeowners full price for the electricity that they took from the grid, but compensate them much less for the power their solar PV panels put back on the grid.

That imbalanced, skewed approach significantly reduces the value and payback period for rooftop solar panels and slows down solar energy development. What’s worse, the Indiana Commission’s flawed order in the Vectren case set a bad precedent for the state’s four other electric utilities.

The Court of Appeals saw through Vectren’s plan, and agreed with the legal arguments made by ELPC Senior Attorney Brad Klein and our partners Citizens Action Coalition, Vote Solar, Solar United Neighbors, Indiana Office of Utility Consumer Counsel, Solarize Indiana and Indiana DG Alliance. The Court found that the Indiana Commission ignored the plain meaning of the governing statute and inappropriately accepted Vectren’s anti-solar policy arguments.

While Vectren works on a new plan for compensating solar panel owners – this time, one that complies with the law – the state will revert to a traditional compensation plan that is fairer to people who invest in renewable energy.

This litigation victory will guide the development of solar energy and other distributed generation tariffs for the rest of Indiana’s utilities, and it should provide more needed stability and certainty for the rooftop solar industry and Indiana consumers.

That’s two big ELPC litigation wins in Indiana for protecting Lake Michigan and clean water, and removing unfair barriers to solar energy development. ELPC doesn’t give up. These victories are good for Indiana, good for the Midwest, and good for the public.