Abrams Environmental Law Clinic -- Significant Accomplishments 2012-13

September 24, 2013

The Abrams Environmental Law Clinic successfully represented Prairie Rivers Network (PRN), an Illinois-oriented water quality organization based in Champaign-Urbana, and their affected members in an administrative challenge to a mining permit issued by the Illinois Department of Natural Resources (IDNR) to Macoupin Energy’s Shay 1 coal mine in Carlinville, IL. This mine has a long history of polluting ground and surface waters, and in 2011 the Illinois EPA (IEPA) issued 40 notices of violation to the mine for such infractions. After winning our response to the company’s motion to dismiss and on the brink of exchanging production requests and responses to interrogatories, our client settled with IDNR and the company. The settlement agreement required the IDNR to issue the permit to the company conditionally -- as it was legally required to in the first place. As a result, if the IEPA communicates to the IDNR that the IEPA is not satisfied with how the company is working to   resolve the environmental violations, then the IDNR must initiate the process to rescind the mining permit. This agreement strengthens the hand of the environmental regulators and citizens. The clinic continues to work on issues related to the mine with PRN and affected members.

Representing Openlands, the Sierra Club and Prairie Rivers Network, the clinic is suing the IDNR and Mississippi Sand LLC to prevent Mississippi Sand from moving forward with a sand mine that would be immediately adjacent to Starved Rock State Park, arguably Illinois’ best state park and one which tens of thousands visit each year to see the canyons, waterfalls and fall colors. The fine sand will be used for hydrologic fracturing, as known as “fracing”; there is evidence that the silica can lead to silicosis, a condition like asbestosis. The plaintiff organizations allege that the IDNR and the company failed to follow requirements in the mining statutes before the issuance of the permit, that the IDNR failed to provide sufficient due process to plaintiffs’ members whose property interests will be affected, and that the IDNR failed to follow procedures designed to protect threatened and endangered species. As a result, plaintiff organizations allege that their members will suffer property, economic, health and aesthetic use injuries. The parties have traded various motions, responses and replies, and the case is currently before Judge Schmidt in Sangamon County (Springfield, IL).

In addition, among other projects the clinic has worked to improve water quality at Illinois’ Lake Michigan beaches and to protect access to Indiana’s Lake Michigan beaches. First, in conjunction with the Alliance for the Great Lakes, we submitted a comment letter to the IEPA in which we criticized IEPA’s proposed approach for addressing bacteria problems along Lake Michigan beaches. IEPA essentially has decided to go with a single, long-term measure of water quality, rather than using that approach plus a shorter term measure that would protect public health from spikes in bacteria. IEPA regulations and US EPA guidance and policy show that it is better to use both approaches (or the belt and suspenders) rather than just the one. The Alliance for the Great Lakes and the clinic have been the only environmental organizations fighting IEPA on this issue to date. And of course, we believe that it will affect the public health risks for tens of thousands of Chicagoans who use the public beaches each summer and hundreds of thousands of people over time. Second, the clinic worked with NRDC, other environmental organizations, and local citizens to fight off an effort from certain beachfront residents in Long Beach, IN to prevent public access to beaches there, despite long- standing custom and clear rights to public access.

About her experiences in the clinic during the past two years, one graduating student wrote: “The cases I worked on at the clinic required me to apply and synthesize many of the concepts I had learned in courses at the law school, such as Legal Research and Writing, Environmental Law, Administrative Law and Constitutional Law. More importantly though, the clinic work challenged me to learn many practical skills not taught in classes. For instance, I drafted several motions during pre-trial stages and drafted discovery requests and responses, while also doing some of the less exciting discovery tasks of a young lawyer like document review. These are all assignments that are typically required of litigation associates, but it is difficult to otherwise experience and learn these things before joining a firm. The clinic also gave me the opportunity to interact directly with clients (on an almost daily basis at times) and opposing counsel and even to participate in settlement negotiations with regulatory agencies. In addition, the size of most cases at the clinic allows students to gain a lot of experience working on teams with their classmates and learning to manage and delegate tasks to meet filing deadlines."