Abrams Environmental Law Clinic Projects
Clinic Projects are selected based on a number of different factors: the urgency of the environmental need, our clinic’s ability to address that need, our potential client’s commitment, and the level of student interest in the subject matter and in the type of proceeding. Typically, projects that are closer to Chicago are preferable—as that allows for students to meet those involved in the project and to tour the affected locations—but particularly excellent projects that may be farther away are not ruled out. Also considered is the University of Chicago's unique perspective and what it can add to the project.
The clinic’s work broadly falls into six different categories: traditional Clean Water Act litigation, Clean Water Act-related rule makings and comments, water quantity litigation, drinking water advocacy, climate and energy litigation and policy, and land and mining litigation and policy. The projects listed below are ventures in which the clinic has invested or is about to invest significant effort.
Traditional Clean Water Act Litigation
Pursuing the Phillips 66 refinery for discharging excessive amounts of mercury into the Mississippi River
On behalf of the Illinois Chapter of the Sierra Club, the Clinic initiated a citizen-led Clean Water Act enforcement action against the Phillips 66 refinery in Wood River, Illinois. By reviewing reports that the company is legally required to file with the state about its releases and records received via Freedom of Information Act requests, students identified that the refinery had been discharging mercury and other pollutants in violation of its permit for years. However, neither U.S. EPA nor the State of Illinois had taken action recently to make the refinery comply with the law. Under the Clean Water Act, citizens are allowed to sue a polluter if they notify the entity and the government of their intent to sue; citizens cannot proceed with their suit until sixty days have passed. In this case, after reviewing the records and identifying the violations, we sent the company, the State, and federal officials the legally-required notice. On the last business day before we could proceed with our suit, the Illinois Attorney General’s Office filed both a complaint against Phillips 66 and a consent decree in state court. The State and Phillips agreed that the company would install additional water treatment technologies and pay a $125,000 fine. The Assistant Attorney General who managed the negotiations and who is the chief of the southern environmental-enforcement division told us that his office considered the settlement to be “excellent.”
Clinic Work Done
However, our clients disagreed, and to address their concerns, students drafted and filed a petition to intervene in the case and a motion to vacate the consent decree. We demonstrated failings in the consent decree, such as a lack of specificity regarding the projects to improve the treatment process and the failure of the penalty to account for the economic benefit to the company of having not installed the necessary pollution-prevention equipment for several years. We also argued that the State had filed the consent decree at the same time as the complaint, thereby failing to follow federal regulations that require the State to provide thirty-day notice of a proposed consent decree so that the public can comment on it before the State and defendants finalize it. The State and Phillips 66 responded to our petition and motion, and the students researched, drafted and submitted our replies.
Three days before the hearing on our petition and motion, the State notified us that it is going to change its practice so that it will now provide the legally-required thirty-day notice of proposed consent decrees and accept comments on them. Our clients believe that this is a significant victory, not just for this matter but for all future Clean Water Act cases in Illinois state courts. The notices will make the public aware of what the Attorney General’s office is proposing before the State settles; the public will have an opportunity to influence the Attorney General and the court to do more to protect the environment; and it will be easier for citizens to track how the State is approaching these kinds of cases more generally and to put pressure on the Attorney General’s office if it is not being aggressive enough. Our primary point-of-contact for the Sierra Club, Albert Ettinger, told us that this result would not have happened without the Abrams Clinic pushing for it.
Moreover, the judge granted our petition to intervene. We had worked for dozens and dozens of hours to prepare a third-year student to argue the motion, and unfortunately—or fortunately—the judge decided that he did not want to hear oral argument before ruling in our favor. He did say that the case was by far the best briefed matter on his docket. While unwilling to vacate the consent decree, the judge did tell the State and Phillips that they needed to treat our criticisms as a “punch list” to address. The State and Phillips have subsequently modified the consent decree in ways which better protect the environment.
A team of six students gained a wide range of knowledge and experiences. Many students were involved in reviewing the reports about the company’s operations, its discharges, and its permits. Students drafted various memoranda for our client that identified the violations, the legal bases for bringing a claim, the context (e.g., the fact that plant refines tar sands from Canada), and the anticipated path and outcome of litigation. One student interviewed witnesses and drafted affidavits to ensure that our client had standing; another worked with the expert we hired to advise us on the company’s wastewater operations. Others drafted a complaint that we were poised to file in federal court. All students were involved in drafting the petition to intervene, the motion to vacate the consent decree, and the various replies. All students—as well as five faculty colleagues, a co-instructor and Professor Templeton—were involved in mooting the student who was going to argue the petition to intervene. And even though the case was argued during spring break, two students—in addition to the student who was going to argue—attended the hearing in Edwardsville, IL, which is near St. Louis.
Enforcing the Clean Water Act against chemicals manufacturer Emerald Performance
On behalf of the Illinois Chapter of the Sierra Club and Prairie Rivers Network—the latter being an Illinois-focused, water-quality-oriented, environmental organization based in Champaign-Urbana—the Abrams Environmental Law Clinic initiated a citizen-led Clean Water Act enforcement action against the Emerald Performance chemicals facility near Peoria, Illinois. By reviewing company-submitted DMRs and records held by the Illinois Environmental Protection Agency (“IEPA”) that we received via FOIAs, students identified that the chemicals facility had been discharging pollutants in violation of its permit for years. However, neither U.S. EPA nor the State had taken any recent actions to make the company comply with the law.
We sent the company, the State, and federal officials the legally-required sixty-day notice before suing. We spoke with the Illinois Attorney General’s office, and their lawyers indicated that IEPA had not referred the case to them and that the Attorney General was not going to file a case on her own motion. We have been following up on this case since then.
Just as with the Phillips 66 case, students were involved in researching the violations, drafting and sending the notice, and drafting a proposed complaint.
Preparing for additional traditional Clean Water Act litigation
Working with Albert Ettinger and the Sierra Club, clinic students are currently investigating another facility for a possible citizen suit. For years, the company has violated the limits on thermal discharges—often by as much as 30 degrees—for most months of the year, and it has done so with impunity. The Abrams Environmental Law Clinic is reviewing the materials we have received through FOIAs, and we are preparing to present the opportunity to the national office of the Sierra Club on behalf of the Illinois chapter. In another potential case, we are looking into the U.S. Steel facility in Portage, IN for excessive hexavalent chromium discharges into waters adjacent to where the Surfrider members surf, which are also close to the Indiana Dunes National Lakeshore.
Clinic Work Done
Students have taken the lead in conducting the investigation, engaging with IEPA staff to get documents, drafting the proposals necessary to secure client approvals, and putting together the sixty-day notice and a draft complaint. Given the different approaches that the IEPA and the Illinois Attorney General have taken in the Phillips 66 and Emerald Performance cases, we do not know if the State will preempt our case, but we intend to have students litigating these issues on behalf of Sierra Club either as the plaintiff or the plaintiff-intervenor.
Prior to the U.S. Steel spill in April into the Burns Canal, which feeds into Lake Michigan, we had begun investigating water quality conditions at the beaches in northwest Indiana where Surfrider members use the water, as well as reviewing reports from the various industrial facilities that discharge near those waters. We are now working with Albert Colman, an Assistant Professor in Geophysical Sciences and the instructor for the introductory environmental science course in the University, to help the surfers understand which discharges—from which facilities—are the most likely to raise health-related issues and to prioritize various legal efforts. Students have taken the lead in reviewing the lists of impaired waters—meaning below EPA water quality standards—for Indiana, examining the U.S. EPA’s Enforcement and Compliance History On-Line (ECHO) database for violations, and presenting the facts and legal options to the leadership of the Chicago Surfrider chapter.
Students will have the opportunity to share their findings at a public meeting at the Patagonia store in the next couple of months, and depending on what students uncover during their investigations, we expect to have sent a sixty-day notice to one or more violators shortly.
Developing systems to support future Clean Water Act litigation
Clinic Work Done
Building on their work on these Clean Water Act enforcement cases, students are compiling a manual on how to bring these kinds of cases for future students. The manual will give guidance about conducting factual investigations, working with standing witnesses and drafting affidavits, identifying legal standards, connecting the facts to the legal requirements, etc. While the manual will not—and is not intended to—answer every question, it will help students get up the learning curve more quickly so that they can be more effective sooner and avoid common pitfalls. Having these resources readily available should also make it easier for the clinic to take on more of these kinds of cases simultaneously. Making these manuals has also been useful in prompting students to reflect further on what they learned.
In addition, we are in the process of further developing the analytic tool which helped clinic students identify the violations at the Phillips 66 and Emerald Performance facilities. A couple of years ago, we worked with the University of Chicago’s Data Science for the Social Good to build a database of all discharge monitoring reports for Illinois companies based on data provided to the State of Illinois. This tool is superior to the U.S. EPA’s ECHO database, because the data from IEPA and U.S. EPA are not always the same, and the Illinois data is the official DMR data. By “scraping” IEPA’s on-line database—which presents information over a multitude of screens and only on a permit-by-permit basis—and putting the data into our own database, we were able to review all of Illinois’ DMR data at once and to identify the most serious permit violations. This analytic tool, once fully upgraded, will update data more often and notify us of significant and repeated violations, rather than requiring us to search the data ourselves. Pairing the manual with the improved data tool will make the clinic more efficient in working with our clients to bring traditional Clean Water Act enforcement suits in Illinois.
Clean Water Act Rulemakings and Comments
Raising water quality standards on the Chicago Area Waterways to protect the women of Recovery on Water
We represent Recovery on Water, or ROW, “a rowing team that gives survivors of breast cancer the unique opportunity to interact, become active in their recovery, and gain support from fellow survivors.” Multiple times per week in the spring, summer, and fall, this team of women row on the South Branch of the Chicago River and on “Bubbly Creek,” the South Fork of the South Branch made famous by Upton Sinclair in his 1906 novel The Jungle as the place where the meatpacking industry dumped its waste. Current and former industrial sites line these polluted waterways; some of the most significant combined sewer outfalls (CSOs) in the city empty into them; and industrial barges travel down the South Branch. The banks and waterways are littered with toilet paper, syringes, feminine hygiene products, condoms and feces, especially after significant rain storms. Despite these conditions, the women row there because there are no other waterways on the near south side on which to row, and the waters are relatively still and easy to manage for novices.
Presently, the water quality standards do not take into account the level of contact that these women have with the water. Technically speaking, the waterways are designated for “secondary contact;” we argue that they should be designed for the more protective “primary contact,” because the women of ROW are rowing just inches off the water, get wet from splashes from fellow rowers and passing vessels, get doused when they remove their craft from the water, and occasionally fall into the water.
Clinic Work Done
On ROW’s behalf, we drafted a sixty-page rulemaking petition to be filed with the Illinois Pollution Control Board (“IPCB”), the body that sets environmental rules for the state, to request that the Board increase the water quality standards for these waterways.
One of our best arguments is that the IPCB upgraded the standards for similar waterways on the north side of Chicago and therefore the Board should do the same for Bubbly Creek, which is on the south side. Moreover, having a lower standard for a similar waterway on the south side is an issue of environmental injustice because the south side where ROW practices is less well-off economically and is more racially diverse than the north side. Although a successful petition would not immediately change the water quality in these waterways, ratcheting up the standards now will help to raise the requirements in future discharge permits, which will ultimately improve the water quality.
In drafting the petition, students worked closely with the women of ROW, touring the waterways and nearby areas on land, by motorboat and by canoe. They learned about how the women come into contact with the water and their reasons for participating in the organization, and they drafted affidavits based on these discussions. Students also presented to ROW members about the industrial history of these waterways, the existing legal water quality requirements, and the legal options for improving them. Students dug through voluminous IPCB proceedings related to water quality standards throughout the Chicago Area Waterway System (CAWS) to determine how our petition would fit into the Board’s current proceedings and to identify substantive grounds that help our case. We are poised to file once our clients are ready; once we do, students will draft motions, prepare the women of ROW to testify, and present in IPCB hearings.
Advocating for tighter limits on Chicago’s combined sewer outfalls
In another project for ROW during the summer of 2015, we commented on a proposed discharge permit for the City of Chicago’s combined sewer outfalls (CSOs). A combined sewer system carries both sanitary sewage—the waste that gets flushed down toilets—and storm water in a single set of pipes to the wastewater treatment facility. During a significant rain event, the combined sewer system cannot handle the full volume of the storm water and the sewage, and thus the mixed storm water and waste are diverted and overflow into waterways, such as Bubbly Creek.
Clinic Work Done
Students developed and presented written comments and oral testimony at public hearing on behalf of ROW and in coordination with other Chicago environmental organizations including the Alliance for the Great Lakes, Friends of the Chicago River, NRDC, Openlands, and Sierra Club. They examined the existing permit and the proposed permit; they identified that neither one met the standards for CSO discharge permits under the Clean Water Act, regulations or guidance. They reviewed how other cities had met these legal requirements, especially those that have invested in green infrastructure, such as Philadelphia. Students also worked with ROW members to help them understand the commenting process and how they could be most effective when testifying. Having received coaching from our students, several ROW members spoke at the public meeting about the benefits of engaging in water sports on these waterways for their recovery and the vile conditions that they encounter after the CSO discharges. Their testimony noticeably moved the officials at the hearing.
Environmental Outcome and Student Learning
Although it is almost two years later, IEPA has not yet issued the new permit. When IEPA does, students will scrutinize it, and we be ready to work with ROW and partner organizations to challenge it as inadequate.
Improving the quality and speed of notifications of combined sewer overflows near the Great Lakes
In the spring of 2017, on behalf of ROW and in coordination with other environmental organizations including the Alliance for the Great Lakes, Friends of the Chicago River, Great Lakes Environmental Law Center, NRDC, Ohio Environmental Council, Openlands, and Sierra Club, we developed and submitted written comments on U.S. EPA’s proposed rule that would establish public notification requirements for combined sewer overflows near the Great Lakes. We contributed to the legal and factual analysis and recommendations from the environmental groups to U.S. EPA. We also submitted additional comments to federal regulators that were tailored to ROW’s concerns specifically, such as requesting that U.S. EPA require sewer-system operators to notify the public of CSO discharges immediately (rather than within four hours) and to push the notifications to them (e.g., via text messages, email, and social media), as rowers could already be on the waterways and at risk if the notice was just posted on a website, for example. A student—a former Radcliffe varsity rower herself—participated in the environmental groups’ discussions, reviewed the proposed rule and practices in other cities, spoke with ROW members about their concerns, drafted comments for ROW to submit, and contributed to the environmental groups’ recommendations.
Leading a stakeholder process to consider implementing water quality trading in Illinois
Working with the IPCB and the Coase-Sandor Institute at the University of Chicago Law School, the clinic is the co-convener of a stakeholder process to determine whether Illinois should consider implementing a water quality trading program. A variety of sources in Illinois discharge excessive amounts of phosphorous and nitrogen into the Des Plaines and Illinois Rivers, which ultimately flow into the Mississippi River and help to create the hypoxic “dead zone” in the Gulf of Mexico. U.S. EPA is requiring regulators to impose more significant discharge limits on “point source” dischargers, i.e. those entities that discharge from a “discernible, confined and discrete conveyance,” e.g., a pipe. In some cases, it may make the most economic sense for a discharger to install controls that go above-and-beyond its permit limits and to “trade” the excess reductions with another entity so that the second entity can make a smaller investment in equipment than it would otherwise. This would essentially be a cap-and-trade system for discharging phosphorous along the Illinois River. Many issues have yet to be worked through, such as how this kind of program would conform with the requirements of the Clean Water Act, who would participate, whether to include non-point sources (potentially on a voluntary basis), how to deal with localized “hot spots,” etc.
Clinic Work Done
Our role has been to identify and invite key stakeholders, to scope the project, to define the agenda, and to conduct initial research on the rules and regulations and previous efforts such as those in the Chesapeake Bay.
A student has helped pull together various background materials, identify potential participants and outside experts, and recommended an agenda for our sessions.
Depending on how the process proceeds, students could ultimately be intimately involved in working with stakeholders to develop the rules that would be proposed to the IPCB for adoption. They would also be involved in the development of what is considered a very innovative and evolving area of environmental regulation and pollution control.
Addressing lead in the drinking water of East Chicago, Indiana
Environmental Problem and Clinic Work
We have worked with a coalition of legal partners to address a variety of urgent concerns at the U.S. Lead Superfund site in East Chicago, Indiana, including tackling drinking water contamination. This past fall, U.S. EPA conducted a pilot project to determine if the excavation associated with its soil remediation at the site was negatively affecting the drinking water in homes there. The project found that while U.S. EPA’s work was not making the situation worse, the water samples in eighteen of the forty-three homes tested had in fact exceeded the level that U.S. EPA uses to determine the safety of drinking water. Furthermore, U.S. EPA officials said that the problems were likely system wide, not just at the Superfund site. We have filed numerous FOIAs and participated in meetings with U.S. EPA, state, and local officials, and working with NRDC, we joined a petition that requested U.S. EPA to use its emergency powers to address the drinking water problems in East Chicago.
Investigating lead in the drinking water in other Midwestern Cities
Based on a request from former clinic student Evan Feinauer ’15, who was litigating the Flint drinking water crisis at NRDC with the support of a Law School post-graduate fellowship, we began to investigate approximately ten other Midwestern cities for violations of the Lead and Copper Rule of the Safe Drinking Water Act.
Clinic Work Done and Student Learning
We sent FOIAs to state agencies and local drinking water system operators; we reviewed the hundreds of documents received in response and identified issues at some locations that require additional investigation. The project was put on hold for several months as our client became occupied with the well-publicized Flint litigation; now that the Flint case has settled, and NRDC has assigned additional staff to this project, we are continuing these investigations and working towards building cases against one or more of these drinking water systems. We will ultimately partner with on-the-ground organizations in each of these communities to determine what legal and political strategy will lead to the best outcomes.
Students who have been involved in this effort have learned a great deal about how drinking water systems operate and how the systems conduct the tests that determine whether they are in compliance with the Safe Drinking Water Act. Students have witnessed how different states and different governmental entities have different degrees of willingness to provide information. They have researched FOIA statutes and case law in several Midwestern states, and they are working to gather more information by arguing that these agencies ought to interpret their state FOIA laws more broadly. Once we are able to sufficiently build a case, students will be intimately involved in the research and writing of the complaint, discovery, motions and trial.
Water Quantity Litigation
Challenging the excessive diversion of Lake Water by the Metropolitan Water Reclamation District of Greater Chicago
With co-counsel Albert Ettinger, the clinic is currently representing Alliance for the Great Lakes, NRDC, Openlands, and Sierra Club in a challenge to a decision by the Illinois Department of Natural Resources (“IDNR”) that allows the Metropolitan Water Reclamation District of Greater Chicago (“MWRD”) to withdraw approximately 420 billion more gallons of water from Lake Michigan between now and 2029 than it would have been able to under its existing permit. Since reversing the Chicago River a century ago, the MWRD and its predecessors have diverted water from Lake Michigan into the Chicago Ship and Sanitary Canal in order to send Chicago’s sewage down the Des Plains and Illinois Rivers and to support barge traffic that links the Great Lakes and the Mississippi River.
Clinic Work Done and Student Learning
In the clinic's complaint, filed in Circuit Court in Cook County, students argue that IDNR failed to follow a host of legal requirements—among them, the Great Lakes-St. Lawrence River Basin Water Resources Compact Act, Illinois Level of Lake Michigan Act, and Illinois’ implementing regulations—when IDNR allowed MWRD to withdraw more water.
During the past year, students have immersed themselves in the various filings and testimony before IDNR and the law governing withdrawals. Last fall, students drafted a formal request for rehearing after IDNR’s hearing officer granted MWRD’s permit-modification request. They also researched and ensured that we followed all administrative rules and requirements before going to court. When the IDNR Director rejected our rehearing request, students wrote the complaint we filed in the circuit court. As the case proceeds, students will review the agency provided record and will draft requests for the agency to supplement the record, our responses to likely motions to dismiss by IDNR and MWRD, and our motion for summary judgment. Because no cases have ever been litigated on these exact provisions of the Compact, this project provides students with a unique opportunity to learn about and to contribute to the development of law designed to protect the Great Lakes.
Energy and Climate
Petitioning the U.S. Securities and Exchange Commission to investigate failures in Shell Oil's disclosures
Partnering with the Juneau office of the international ocean-advocacy group Oceana, students researched Shell Oil’s Arctic offshore oil and gas activities and drafted a fifty-six-page petition that requested the U.S. Securities and Exchange Commission (“SEC”) investigate Shell Oil for failing to disclose material information to investors about its U.S. Arctic investments and operations. The petition stated that although Shell had told regulators that litigation regarding the validity of its leases in the Arctic jeopardized the company’s $6 billion investment in the venture, it had never shared that information with its own investors. Shell had also failed to inform investors of a series of significant equipment failures, regulatory violations, and fines related to the Arctic exploration venture.
Clinic Work Done
In the process of writing this petition, the student team conducted significant background factual research into the challenges of offshore oil and gas exploration and production in the Arctic, Shell’s activities, Shell’s statements, Shell’s communications with shareholders, and the various legal requirements. Working closely with Oceana, the students’ research yielded some excellent examples of how Shell had not apprised its investors of material information.
Environmental Outcome and Student Learning
In addition to conducting the factual research and writing the petition, students also briefed policymakers in Washington, D.C. and the media on the project. Students held individual meetings with Sen. Sheldon Whitehouse (D-RI); the Director of the Bureau of Ocean Energy Management Abigail Hopper and her senior staff; Council on Environmental Quality’s Director of Oceans Policy Elizabeth Kerttula and her team; and staff for the Senate Banking Committee and from the offices of Sen. Boxer (D-CA), Sen. Cardin (D-MD), Sen. Durban (D-IL), Rep. Huffman (D-CA), and Rep. Lowenthal (D-CA). Students held a briefing session for Congressional staff, the media and the public in the U.S. Senate’s Dirksen Office Building. The Wall Street Journal, Reuters, AP, and the Alaska Daily News all covered the release of the petition, and the Houston Chronicle quoted one clinic student. We successfully solicited letters to the SEC from Senators Cardin, Whitehouse, Durbin, Merkley, Warren, Boxer, Menendez, Leahy, Blumenthal, Schatz, Sanders, and Booker and from Representatives Lowenthal, Grijalva, and Waters, in which they urged the SEC to review disclosures by oil and gas companies related to their offshore operations.
Shell announced later that summer that it was giving up on exploration in the U.S. Arctic, and the SEC never ruled on our petition. Through this project, not only were students able to learn about the Arctic, oil and gas exploration, federal leasing, and the securities laws, they also gained practical experience in engaging with policy makers and the media and learned how to use public awareness as a tool for advocacy.
Filing an amicus brief to support Minnesota's Next Generation Energy Act
Environmental Problem and Clinic Work Done
Students collaborated with Law School alumni in drafting and filing an amicus brief about traditional state regulation of electricity in North Dakota v. Heydinger, 825 F.3d 912 (8th Cir. 2016), in order to defend the validity of Minnesota’s Next Generation Energy Act. Graham McCahan ’05 at Environmental Defense Fund and Sean Donahue ’92 of Donahue & Goldberg, LLP asked us to supplement their environmentally-oriented brief with a utility-oriented submission to the appeals court. On behalf of Steven Gaw, former Chairman of the Missouri Public Service Commission, and Steven Weisman, a former senior staff member of the California Public Utilities Commission, we argued that Minnesota’s law, which required new coal-fired power plants that sold power in Minnesota to offset their greenhouse gas emissions, fit within the traditional authority of state utility regulators to determine the sources of generation that provide power to their residents and to set the environmental requirements for those sources.
Environmental Outcome and Student Learning
In drafting the amicus brief, students quickly came up to speed about the development and evolution of the U.S. electricity system, the nature of modern electricity markets, the laws and regulations that structure these markets, and the relationship between federal and state regulatory responsibilities. They presented drafts to Chairman Gaw and Mr. Weisman, revised their work based on the experts’ comments, and filed the brief.
The Eighth Circuit ultimately split three ways in the case, upholding the lower court’s decision on a variety of different rationales. Although the State of Minnesota and Environmental Defense Fund decided not to seek further review of the case, students learned about a complex and increasingly important area of law for environmentalists and gained experience working intensively with former utility regulators.
Advancing and Defending the use of the Social Cost of Carbon
The clinic is working with Michael Greenstone, the Milton Friedman Professor of Economics, and Sam Ori, the Executive Director of the Energy Policy Institute at Chicago to promote the continued use of the Social Cost of Carbon (“SCC”)—which represents the marginal cost of emissions of carbon dioxide into the atmosphere—despite efforts made by the Trump Administration to eliminate its use. As Chief Economist for the Council of Economic Advisors to President Obama, Professor Greenstone co-led the Interagency Working Group on the Social Cost of Greenhouse Gases with Cass Sunstein, the Administrator of the White House Office of Information and Regulatory Affairs.
Clinic Work Done
The clinic is working with Prof. Greenstone and Executive Director Ori to file comments and amicus briefs in at least three different matters. Students have researched case law, Executive Orders, Office of Management and Budget circulars, and the economics literature. Numerous court rulings support the continued use of SCC in federal agencies’ analyses of costs and impacts when considering proposed government actions, and Circular A-4—to which Trump’s Executive Order points favorable—has provisions that are helpful in arguing for the continued use of the SCC. On April 24, the clinic submitted a comment on behalf of Prof. Greenstone, Director Ori and the clinic in support of the Army Corp of Engineers use of the SCC in its draft Missouri River Management Plan and Environmental Impact Statement. In June, the clinic will make a comment on the use of the SCC in the U.S. Forest Service’s supplemental environmental impact statement in High Country Conservation Advocates v. U.S. Forest Service, No. 13-cv-01723-RBJ, D. Colo., which concerns three interconnected decisions that enabled coal mining exploration in parts of Colorado. Later this summer or this fall, the clinic may also submit an amicus brief on behalf of Prof. Greenstone and other economists in Citizens for Clean Energy v. U.S. Department of Interior, No 4:17-cv-00030-BMM, D. Mont., in which a number of environmental groups and a Native American tribe are challenging the decision of U.S. Department of the Interior Secretary Zinke to remove the moratorium on new coal mine leases on federal lands.
This effort gives students the opportunity to work with one of the country’s leading economists and experts on climate change, and it allows the clinic to leverage the expertise of the University and to offer expertise that almost no one else can to these matters. It also helps the students think more deeply about the relationship between statutes, regulations, and guidance and about the transitions between presidential administrations. The knowledge that we are developing in these three matters will also serve as a useful tool in formulating a set of arguments that we can use in future federal litigation and state rule making on the SCC.
Advising Illinois environmental officials about the Clean Power Plan
During the course of a year, the clinic provided legal and policy analyses to Gerry Keenan, Chairman of the IPCB, as he and his staff were determining how Illinois could best comply with the requirements of the federal Clean Power Plan. That federal rule—which required reductions in greenhouse gas emissions from existing electric generating units, i.e. coal-fired power plants—gave each state the opportunity to develop its own plan for reducing such emissions in its territory.
Clinic Work Done
In a twenty-five-page memorandum, students analyzed how the Clean Power Plan related to existing Illinois law. Students concluded that Illinois would be able to regulate greenhouse gases under the Clean Power Plan only because the federal government was requiring it to do so; Illinois statutes forbade the regulation of greenhouse gases in the absence of federal action. Students determined that the Board had the authority to issue trading rules and regulations, but they also found that statutory changes might be necessary if the Board auctioned off the allowances, as it would then be raising revenues for the State. Students also determined that if Illinois wanted to enter into a multi-state trading system, it would be wise to seek legislative approval. Students also reviewed the legal challenges to the creation of greenhouse gas trading markets by California and states in the Northeast, in order to see if any of those cases raised issues that Illinois would need to address. In an additional ten-page memorandum, students also reviewed various tax implications of methods the State might use to reduce emissions, researching into Internal Revenue Service rulings as early as the Clean Air Act’s Acid Rain program to establish some of their findings.
In addition to their memoranda, clinic students also developed and discussed with Chairman Keenan and his staff a series of lengthy and detailed PowerPoint presentations that laid out implementation options for Illinois under the Clean Power Plan, e.g., how Illinois might distribute allowances, the ways in which emitters might be permitted to use allowances, ways in which emissions might be measured, and what sources should fall under Illinois’ cap, etc. They assessed whether Illinois should auction allowances fully, conduct a partial auction, or allocate allowances to different entities; within the allocation option, students examined the advantages and disadvantages of allocating allowances to existing emitters, load-serving entities, generators of all types, etc. Students looked at whether Illinois should hold some allowances in reserve to help assure prices do not become unaffordable, such as was done under the Acid Rain program, and they examined different options for whether emitters should be allowed to “borrow” from future allowance allocations or to “bank” current allowances for future use. They looked at whether Illinois should choose a mass-based or emissions-rate approach for regulating and whether Illinois should include new sources—primarily natural gas plants—as being under Illinois’ cap. The student team met approximately every two months with Chairman Keenan and his staff over the course of a year. During the summer, one student and I presented to the entire five-member Pollution Control Board and interested members of the public.
Environmental Outcome and Student Learning
Due to litigation regarding the Clean Power Plan and the 2016 election, this project was put on hold. Nonetheless, students learned a great deal about the legal requirements for and the design of cap-and-trade programs. They also gained significant experience in engaging with one of the Illinois’ most senior regulators. At the sessions, Chairman Keenan asked students a number of questions that led to more in-depth research and additional presentations, helped educate the students as to the legal and economic concerns that he had, and apprised them of some of the political dynamics in the state. Chairman Keenan was deeply appreciative of the students’ work. While a person early in his or her career can have the opportunity to present to senior decision makers, the opportunity for this level of sustained engagement is rare.
Promoting regulatory reform to increase entrepreneurs’ access to residential energy-efficiency data
Last year, clinic students drafted and published a seventy-page report that advocated for increased access to residential energy data for qualified entrepreneurs, with the goal of spurring additional energy-efficiency investments. Studies have identified significant opportunities for energy efficiency in the residential sector, and reducing energy use saves individual consumers money, decreases costs for the electric system as a whole by reducing the need to build additional power plants, and benefits the environment by slowing the growth of greenhouse gas emissions. That said, some economists have argued that government-led energy efficiency programs are not cost-effective. To bridge this gap, students took a University of Chicago approach to this problem: how could the market for energy efficiency services be more efficient? A properly structured market should lead consumers to invest in solutions that are cost-effective and to reject those that are not. To that end, we focused on increasing the disclosure of utility-held energy data to qualified third parties so that those entities could develop, market and implement innovative energy-efficiency measures. The market would then sort out which approaches made economic sense, rather than having government bureaucrats spending taxpayer funds or directing utilities on how to spend ratepayer funds in ways that might not be cost-effective.
Clinic Work Done
What made our work different from other efforts in the past is that students proposed specific regulatory language to address the barriers that we identified. Students explored concerns that various stakeholders might have, e.g., liability for disclosure of consumer information, harm to a firm’s reputation, consumer privacy, implementation challenges, and potential impacts to utility revenues. Students developed a slate of various solutions, some of which were more pro-utility, some of which were more-consumer friendly. We did not endorse one particular approach over another, noting that different jurisdictions might value one set of concerns more than another. However, students argued that regulators could take a number of steps that should make every interest group better off than it is now. More specifically, and among other proposals, the report proposed specific regulatory language that would require the aggregation and anonymization of customer data; control the transfer, receipt and safekeeping of aggregated data; require purchase of insurance or bonds; and limit data disclosures to certain kinds of recipients.
For this project, students conducted extensive research. They reviewed the academic, government and advocacy-oriented literature on the promise and pitfalls of energy efficiency programs. Students examined critically both existing rules and emerging proposals in California, Colorado, Illinois, Oklahoma, Vermont and the U.S. Senate related to disclosure of residential energy data, and they examined the Fair Credit Reporting Act, the Health Insurance Portability and Accountability Act, and Asbestos Hazard Emergency Response Act, among others, to see how Congress had addressed similar concerns in the past. They spoke with energy efficiency entrepreneurs, environmental advocates, national policymakers, and utility executives. In the process of writing this report, they were able to gain better perspective on the competing concerns of stakeholders and to develop practical, implementation-oriented recommendations to address these concerns. We have been reaching out to regulators and regulatory associations to promote these ideas.
Gleaning lessons learned from energy reform in Illinois and Michigan to help other Midwestern states
Illinois and Michigan recently passed significant pieces of legislation to reform their energy sectors. Among other actions, these statutes fixed problems with each state’s renewable portfolio standard, encouraged energy efficiency investments, provided support for clean energy jobs or for workers who are losing their jobs in dirty energy, addressed barriers to distributed solar energy, and, in the case of Illinois, provided significant assistance to financially-ailing nuclear power plants.
Clinic Work Done
Students are drafting a report about these major pieces of legislation. Looking behind the statements of the sponsors and bill proponents, the students digested the complicated bills and produced a summary of their major provisions. They compared each state’s legislation to its prior regime, and they contrasted each state’s efforts with the other, grounding their analysis in the economic, social, and political dynamics in each state. Students are now in the process of reaching out to the major participants in each state to learn more about how these states arrived at their legislation and to receive feedback on their analyses. The goal of the project is to help other Midwestern states understand what they can do to improve their energy landscape based on the experiences of Illinois and Michigan.
During this project, students have had to become experts at utility law. They have also learned the importance of understanding the goals of the major stakeholders and how the legislation is intended to achieve that. They have the opportunity to discuss the legislation with those involved in it passing, including Jen Walling, Executive Director of Illinois Environmental Council, and Dick Munson, Midwest Energy Director for Environmental Defense Fund. In addition, we recently joined stakeholder working groups designed to address details in the Michigan legislation, and we are proposing to serve as one of the facilitators for such efforts in Illinois.
Advancing a cap-and-trade system for GHG Emissions in Illinois
Working with a small group of former environmental officials from Illinois Republican administrations and economists at the University of Chicago, students developed a position paper in which they argue that Illinois should implement a cap-and-trade program for greenhouse gas emissions and should link with other state or regional efforts, such as the one in California or in the Northeast. Although the Illinois legislature just passed significant energy legislation, we believe that our proposal may have traction with Governor Rauner and his team, in part because the plan should create jobs and could help the cash-starved state government raise revenues. Also, it would provide a good backup should the provisions in the recent energy legislation assisting nuclear plants fail in court, and it could help coal-fired power plants transition to using natural gas.
Clinic Work Done and Student Learning
Having presented to the former government officials spearheading this initiative, and having received feedback from them and Profs. Steve Cicala and Ryan Kellogg at the University’s Harris School of Public Policy, students have significantly reworked the initial drafts of the paper. The clinic is now working to persuade éminences grises, such as Richard Sandor, father of the Chicago Climate Exchange (in which Governor Rauner invested his personal funds), to help us approach the Governor about this proposal. The clinic has also reached out to the Coase-Sandor Institute at the Law School and Harris School professors for help with modeling various scenarios under our proposal. Drafting, presenting, and receiving feedback on their work from these experts were immensely helpful to the students in learning to about the economic and political considerations when trying to introduce and advocate for policy reforms at the state government level. As the clinic continues working to rally support for the initiative, more opportunities should arise on this project to deepen the students’ understanding of cap-and-trade systems and legislative processes.
Engaging with environmental justice organizations on climate change and energy policy
At the request of Antonio Lopez, Executive Director of the Little Village Environmental Justice Organization (LVEJO), students gave an introductory presentation about cap-and-trade regulation to the Chicago Environmental Justice Network and other Midwestern climate activists. The clinic also provided legal support to Denise Abdul-Rahman, the climate director for the Indiana NAACP, by analyzing various bills moving through Indiana’s state legislature.
Clinic Work Done
For LVEJO, the students explained the basics of the approach and presented findings regarding the environmental and economic effectiveness of various cap-and-trade systems that have been implemented. Attendees pushed the students about the potential problem of “hot spots,” areas where pollution might increase due to a cap-and-trade system, even if overall pollution levels fall.
For the Indiana NAACP, students reviewed a proposal to create an environmental justice advisory committee and a bill that would allow communities to pool resources to participate in solar programs, as individuals in low income communities often do not have the capital or ownership of physical property necessary to be able to install their own systems. In addition, the student team assessed what legal protections might exist to ensure that environmental justice communities do not suffer if NOx-emitting natural gas plants in those communities operate more often due to the requirements of the Clean Power Plan. As with the LVEJO project, by working with Ms. Abdul-Rahman, the students learned firsthand about the concerns of members of environmental justice communities.
In both projects, students were pushed to think more deeply about the unintended consequences and practical complexities of environmental programs. For example, while students explained that there are very few cases in which hot spots have occurred, the activists impressed upon the students that they are concerned about the cumulative effects of various sources of pollution and that they worry that any system that allows for the concentration of pollution will hurt them. The experience was eye-opening for the student presenters—even those who are concerned about environmental justice issues.
Commenting on a proposed coal gasification plant in Taylorville, Illinois
The clinic's students and faculty worked with Associate Professor of Geophysical Sciences Liz Moyer, with her students, and with students from the Harris School of Public Policy to assess the viability of a proposed coal-gasification power plant in Taylorville, Illinois and to determine the wisdom and legality of proposed legislation in the Illinois General Assembly supporting the plant. The clinic concluded that the proposed facility was needlessly energy-intensive, economically-inefficient, and not particularly helpful for the environment.
Clinic Work Done and Outcome
In both projects, students were pushed to think more deeply about the unintended consequences and practical complexities of environmental programs. The legislation was ultimately defeated, and Tenaska, the company proposing to build the plant, withdrew the project.
Through this project, our student team had the chance to collaborate with science and policy teams within the University of Chicago, to participate in the state-level legislative process, and to learn that the environmental community is not monolithic and that industry can sometimes be an ally.
Participating in the Illinois Chamber of Commerce Commission's "NextGrid" stakeholder process
The clinic proposed to the Illinois Commerce Commission, the state’s electric utility regulator, that we would serve as a co-facilitator for its “utility of the future” stakeholder process, which is designed to “study ways to leverage the State’s restructured energy market, investment in smart-grid technology, and significant expansion of renewables and energy efficiency as a result of the recently passed Future Energy Jobs Act.” Although the ICC ultimately chose another facilitator, the clinic will be involved in these important discussions.
This effort will give the clinic the opportunity to employ a broad range of its resources. We would draw on our own knowledge of utility regulation and practice, the intellectual capital of colleagues at EPIC and the Energy and Environment Urban Lab, and the financial support from the Joyce Foundation grant that facilitates the clinic’s work on energy issues. We will work on this effort in conjunction with a Chicago-based firm that facilitated the development of state energy plans in Iowa and Missouri, and that assisted in deploying approximately $300 million in American Recovery and Reinvestment Act funds when I led the Department of Natural Resources in Missouri. We would also leverage the work that the clinic has done for IPCB Chairman Keenan on energy and environmental issues, our research on Illinois and Michigan energy legislation, and our relationships with environmental and energy organizations.
Students would learn firsthand about the opportunities and challenges associated with developing and implementing regulations and programs after the passage of a major piece of legislation, and they would also develop relationships with key stakeholders in the energy and environmental fields. We secured the support of a number of stakeholders for our proposal to co-lead the effort, and although we were not selected, we will work closely with these stakeholders in our advocacy.
Land and Mining
Challenging silica mining adjacent to Starved Rock State Park
Representing Sierra Club, Prairie Rivers Network and Openlands and their members, the clinic sued the Illinois Department of Natural Resources (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, one of Illinois’s most beautiful and most popular state parks. Our standing witnesses and organizational partners were concerned about air and water contamination, destruction of property, and ruination of precious natural resources, as well as IDNR’s serious breaches of procedural requirements. From a broader legal perspective, this case represented an important opportunity to challenge the restrictions that Illinois courts have imposed on standing in environmental cases recently.
Clinic Work Done
Ten students over two-and-a-half years spent hundreds of hours working on this case, filing FOIA requests, commenting on the permit application, capturing standing witnesses’ experiences in affidavits, visiting the park and nearby properties, drafting the complaint, responding to defendants’ motions to dismiss, writing the motion for summary judgment, drafting the response to defendants’ motions to strike, and participating in meetings with the senior leadership of our client organizations and their boards of directors about each milestone of the case and possible next steps (e.g., whether to appeal). Two students spent dozens and dozens of hours preparing to argue the case before Sangamon County Circuit Court Judge John Schmidt, with one student arguing against Defendants’ motions to dismiss, and the other the summary judgment motion. At the end of the argument, Judge Schmidt said that students had done “a wonderful job of arguing this case,” and added that:
"I’m heartened to see that the law, the future, because many of us -- well, none of us are going to be here forever, but some of us are thinking about leaving sooner than others, the profession, and I can see that our profession is going to be well-served by the folks that are learning to practice it, so to those that sponsored them, thank you for letting them do that. Thank you very much."
Unfortunately, he then ruled that our clients did not have standing and dismissed the case.
The clinic appealed the adverse decision to the Fourth District Illinois Appellate Court. Students researched and wrote the appellate brief and our replies to the responses of IDNR and Mississippi Sand. After multiple moots and weeks of preparation, a third student argued the case before the three judge panel; unfortunately, the appellate court ruled against us, again holding that we did not have standing. Illinois Supreme Court rejected our petition for leave to appeal.
While we lost the legal battle, our clients have won the war, at least so far. During the period while we were litigating the case, Mississippi Sand did not develop the site, and the price of sand dropped precipitously. Mississippi Sand ultimately sold its interest to another mining company, and that entity has also not started mining the site. Thus, the site and the ecosystem remain intact. Thus, even though we did not prevail in the litigation, we did help to save Starved Rock State Park.
Despite the loss in the courts, students laid the groundwork for legislative and regulatory reform. A student drafted a lengthy analysis about potential fixes to the problems we identified in the Illinois surface mining law and Illinois Administrative Review Law. We met with then-IDNR Director Marc Miller and presented our recommendations to him. At various points over the past few years, we have also engaged with the Illinois Attorney General’s Office, several legislators, our clients, and other environmental organizations about how we could bring about statutory or regulatory changes. While the moment has not been right to push for these changes, we are ready to take advantage of it when it comes.
Challenging groundwater contamination at Foresight Energy’s Shay 1 coal mine
During a period of approximately three years, several teams of students represented Prairie Rivers Network, Sierra Club, and their affected members in challenges to permits issued by IDNR’s Office of Mines and Minerals to the Shay 1 coal mine, which has contaminated groundwater and surface water in the Carlinville, Illinois area for years. At the time of litigation, the mine was owned by Foresight Energy, which was the largest owner and operator of coal mines in Illinois. Among other problems at the site, contaminants seep into the groundwater and nearby drinking water wells because the lining at the bottom of the mine’s 150-acre large, 100-foot high coal-slurry impoundment is inadequate. The mine also uses a nearby lake as a settlement pond for its surface water discharges; using the waterbody in that way, as a “treatment works,” violates the Clean Water Act. Because the coal mine is on private property, we were not permitted to walk on the site itself, but students viewed the satellite maps online, toured the adjacent properties, and heard the concerns of the homeowners and community members in the surrounding area.
Clinic Work Done
In our first case against the mine in 2012 and 2013, a student developed and delivered an argument to IDNR’s lawyers that persuaded IDNR to settle the case. As a result, IDNR changed the terms of the mining permit to make it “conditional,” which makes it easier for the Illinois Environmental Protection Agency (IEPA), the Illinois Attorney General and citizens to hold the company accountable for environmental problems. Unlike in the past, now if the company commits environmental violations, it can lose its mining permit, which is a significant incentive for it to clean up its act. Spurred by our efforts, Illinois Attorney General subsequently initiated its own effort to bring the company into compliance.
Students spent hundreds of hours drafting a request for an administrative hearing, responding to determination of legal issues memoranda, responding to motions to dismiss, drafting and addressing interrogatories and requests for production, working with an expert witness, drafting affidavits, and attending community meetings. Very few challenges are brought to coal mines in Illinois, in part because such cases are so time consuming, and this case would not have been brought but for the involvement of the clinic’s students.
The clinic later challenged another permit associated with the mine, attempting to force the company to stop polluting and to clean up other contamination promptly. A student team conducted the factual investigation and drafted the necessary filings. One student successfully argued the first round of motions before an administrative hearing officer.
Environmental Outcome and Student Learning
Ultimately, our client Prairie Rivers Network decided not to pursue the litigation further due to personnel changes and doubts about whether Prairie Rivers could achieve its goals through this particular action. Nonetheless, the students were able to learn about the coal mining laws and their interplay with the environmental statutes, to draft affidavits for standing witnesses, to write pleadings and motions, and to argue their client’s case before an adjudicator.
Pushing government officials to address lead and arsenic contamination in East Chicago, Indiana
Since August 2016, the clinic has worked in coalition with the Northwestern University Law School’s Environmental Advocacy Clinic, the Loyola University Law School’s Health Justice Project, the Sargent Shriver National Center on Poverty Law, and the firm of Goldberg Kohn Ltd. to represent the concerns of residents who live on the USS Lead Superfund site in East Chicago, Indiana. Industrial operations used the site for nearly 100 years, contaminating it and a nearby 322-acre residential area with lead, arsenic, and polycyclic aromatic hydrocarbons. Despite knowing the history of contamination, for decades U.S. EPA and the Indiana Department of Environmental Management did little to investigate or clean up the site, even after the U.S. EPA put the site on the National Priorities List for cleanup under the Superfund program in 2009. Only this summer did the public finally become widely aware of these issues when the Mayor of East Chicago announced that he was going to tear down the West Calumet Housing Project, which is located on the site and is home to more than 1,100 residents, due to the contamination.
Clinic Work Done
Since then, the clinic has worked with local residents, local environmental activists, and our partners to put pressure on U.S. EPA, the U.S. Department of Housing and Urban Development, the Indiana Department of Environmental Management, the Indiana Department of Public Health, and the City of East Chicago, among others, to address residents’ concerns. The clinic joined co-counsel Goldberg Kohn and Northwestern in filing a motion to intervene in U.S. et al. vs. Atlantic Richfield et al., (No.2:14-cv-00312, N.D. Indiana). Students participated in meetings with U.S. EPA and Department of Justice officials to advocate on the residents’ behalf, and students have helped to organize meetings of the Community Advisory Group, a formalized group of residents that advocates for their interests at the site. The clinic also filed a number of FOIAs to learn more about the conditions at the site and why government officials did not act sooner. And as mentioned earlier, the clinic was involved in addressing lead in the drinking water at the Superfund site and throughout East Chicago.
The students who have worked on this project have learned about some of the legal, factual, and political complexities of advocating for residents at a highly contaminated site. They researched specific legal and factual questions related to site and the responsibilities of the government at the local, state and national levels, and they worked with residents to help them frame their concerns.
Filing an amicus brief in sand mining case Whipple vs. the Village of North Utica
We drafted a brief amicus brief on behalf of Sierra Club, Prairie Rivers Network, and Openlands for Whipple vs. the Village of North Utica, 2017 IL App (3d) 150547, a case in which residents filed zoning challenges and a prospective nuisance claim against an industrial sand mine that would be located next to their properties. The trial judge had dismissed the claim. Knowing that our clients would have concerns about such a ruling, Clinical Asst. Prof. Nancy Loeb of the Northwestern University Law School’s Environmental Advocacy Center, who represented the landowner plaintiffs, asked our clients to file an amicus brief to address these points.
Clinic Work Done
Our brief explained to the Appellate Court that the trial judge disregarded state and federal precedent that recognized that neither Congress nor the General Assembly had barred such common-law challenges. Our clients believed that it was important to weigh in on these issues because an adverse appellate ruling on this point would have removed an important type of claim that they could make in future cases.
The students who worked on this project learned about the relationship between statutory environmental laws and common law claims that address similar issues, about state appellate court procedure, and about advocating for their clients’ interests in a way that supports the primary litigants. Prof. Loeb was appreciative of our efforts, and the Third District delivered a favorable ruling to her clients on their ability to bring their prospective nuisance claim.
Helping to implement the Cook County Forest Preserves’ Next Century Conservation Plan
In 2015, on the motion of Cook County President Toni Preckwinkle, the Board of Commissioners for the Forest Preserve District of Cook County (FPDCC) appointed Professor Templeton to serve a three year term on the newly created Conservation and Policy Council, a ten member group charged with overseeing the implementation of the Next Century Conservation Plan, the twenty-five-year strategic vision for the District. The FPDCC is the largest conservation organization in the Chicago area, owning 69,000 acres, or 11% of the land in Cook County, as well as the land and buildings on which the Brookfield Zoo and the Chicago Botanical Garden reside.
Serving on the Council has connected Professor Templeton and the clinic with the broader Chicago environmental and conservation communities and offers the interested student opportunities to learn about a large conservation organization by working on projects such as reviewing and summarizing laws and local ordinances that pertain to the FPDCC, assessing proposed plans, and attending Council meetings.