Abrams Environmental Law Clinic - Significant Achievements for 2022-23
Protecting Our Great Lakes, Rivers, and Shorelines
Since 2016, the Abrams Clinic has worked with the Chicago chapter of the Surfrider Foundation to protect water quality along the Lake Michigan shoreline in northwest Indiana, where its members surf. In April 2017, the US Steel plant in Portage, Indiana, spilled approximately 300 pounds of hexavalent chromium into Lake Michigan. In January 2018, the Abrams Clinic filed a suit on behalf of Surfrider against US Steel, alleging multiple violations of US Steel’s discharge permits; the City of Chicago filed suit shortly after. The US government and the State of Indiana filed their own, separate case and immediately proposed a consent decree to settle all of their claims against US Steel. On behalf of Surfrider, the Clinic filed extensive comments on the proposed consent decree. In November 2019, the federal and state governments moved for entry of an improved consent decree which included provisions advocated for by Surfrider and the City of Chicago, namely a water sampling project that alerts beachgoers as to Lake Michigan’s water quality condition, better notifications in case of future spills, and improvements to U.S. Steel’s operations and maintenance plans. The Court approved the proposed Revised Consent Decree just before the 2021-22 academic year began. While the Abrams Clinic team was assessing an additional enforcement action by the Indiana Department of Environmental Management against the plant, US Steel again violated its Clean Water Act permit and the Revised Consent Decree. These developments pushed Surfrider and the City of Chicago to pursue additional judicial relief in their case. In September 2022, the court dismissed Surfrider and the City’s case on the basis of res judicata, saying that Surfrider and the City had achieved sufficient improvements through the governments’ case. The Clinic has sought to request attorneys’ fees for its role in overall litigation, arguing that it is a substantially prevailing party. The Clinic’s work, which has received significant media attention, helped to spawn other litigation to address pollution by other industrial facilities in Northwest Indiana and other enforcement against US Steel by the State of Indiana.
The Abrams Clinic represents Friends of the Chicago River and the Sierra Club in their efforts to hold Trump Tower in downtown Chicago accountable for illegally withdrawing water from the Chicago River. To cool the building, Trump Tower draws water at high volumes similar to industrial factories or power plants, but Trump Tower operated for more than a decade without ever conducting the legally required studies to determine the impact of those operations on aquatic life or without installing sufficient equipment to protect aquatic life consistent with federal regulations. After the Clinic sent a notice of intent to sue Trump Tower, the State of Illinois filed its own case in the summer of 2018, and we successfully moved to intervene in that case. In 2022-23, Clinic students supported sixteen depositions as part of this litigation’s ongoing discovery process. Three members of the class of 2023 were able to take one or two depositions each, a hugely successful undertaking in continuing to develop the facts of this case. Additionally, students worked with an expert on cooling water intake structures to organize his disclosures and prepare him for expert depositions. As part of those efforts, the expert located a potential discrepancy regarding Trump Tower’s calculations, prompting additional questions from Illinois Environmental Protection Agency (IEPA) as part of considering a proposed new permit for Trump Tower. Looking forward, the Clinic is assessing how this discrepancy might prompt further action, as well as undergoing trial preparation, as trial is currently scheduled to take place in fall 2023.
Energy and Climate
Energy Justice
The Abrams Clinic continued to support grassroots organizations advocating for energy justice in low-income, people-of-color communities in Michigan. With the Clinic’s representation, these organizations intervened in cases before the Michigan Public Service Commission (MPSC), which regulates investor-owned utilities. Students conduct discovery, draft written testimony, cross-examine utility executives, participate in settlement discussions, and file briefs for these projects. The Clinic’s representation has elevated the concerns of these community organizations and forced both the electric utilities and regulators to consider issues of equity to an unprecedented degree. This year, Clinic students participated in seven contested cases as well as multiple MPSC workgroup discussions for Soulardarity, based in Highland Park, and We Want Green, Too, based in Detroit, against DTE Electric and for Urban Core Collective, based in Grand Rapids, against Consumers Energy.
The Clinic started this past school year with wins in two cases that have since concluded. First, the Commission rejected DTE Electric’s request to waive consumer protections to authorize a proposed electric utility prepayment program with a questionable history of success during its pilot run. Second, the Commission rejected the utility’s full requested rate hikes, approving approximately only 10% of the proposed increases affecting residential customers—rejecting roughly $300 million of the $330 million increase that the utility had requested. In both cases, the final Commission orders and the administrative law judge’s proposals for final decision cited the Clinic’s testimony and briefs.
Only slightly later in the academic year, DTE filed its next rate case, an integrated resource plan (IRP) case, and a voluntary green pricing case (VGP), all of which are ongoing. The Clinic continues to fight DTE’s unreasonable and imprudent rate increases that do not result in higher quality and lower cost of service for the Company’s most vulnerable customers. In the rate case in particular, DTE has requested a rate increase nearly double its historic requests. In the IRP, the Clinic has advocated for long-term investment in community-owned solar and for support for low-income distributed generation while preventing the Company from not only continuing its reliance on fossil fuels but also passing the costs of those flawed investments on to its customers. Finally, the Clinic has responded to Commission-ordered straw proposal from DTE for a community solar program, which offers nothing more than what the Company does already and continues to fail to provide equitable access to renewable energy for low- and middle-income residents in areas like Detroit.
On the west side of the state, the Clinic intervened in two rate cases brought by Consumers Energy. In the 2022 rate case, after full briefing of the case, the Clinic helped Urban Core Collective reach a settlement with Consumers that cut Consumers’ rate increase by more than 40%. The settlement also increased access to the Consumers rooftop solar program and required Consumers to make several equity-related commitments applicable to future filings, including conducting its first public meeting for community groups in a rate case. In the recently filed 2023 rate case, the Clinic will continue to help Urban Core Collective push for greater consideration of race and class equity within utility decision-making, following up on the progress made in the 2022 rate case settlement.
Outside of litigation, Clinic students worked with our clients to participate in the MPSC’s low-income and distribution grid-related workgroups. At a Low-Income Energy Policy Summit hosted by the MPSC, Clinic students presented comments from our clients on deficiencies in existing low-income programs and communications with low-income communities. The Clinic also advised Soulardarity and We Want Green, Too on the hiring and onboarding of two equity advocate consultants, who will further expand our clients’ capabilities to engage with MPSC processes.
Corporate Climate Greenwashing
The Abrams Environmental Law Clinic worked with ClientEarth, an international nonprofit dedicated to using the law to protect the environment in over 50 countries, to research corporate climate greenwashing, with a focus on consumer protection, green financing, and securities liability. Students conducted factual investigations into multiple companies to identify industry patterns in the green financing space and conducted legal research to determine the relevant precedent governing greenwashing claims against corporations. Students compiled their research and drafted an analysis of securities liability in the climate space for the client. They then presented their findings in a case study and oral presentation to members of the ClientEarth, including the organization’s North American head. The project helped identify new strategies for increasing corporate accountability in the fight against climate change.
Land Contamination and Lead
The Abrams Clinic continues to represent East Chicago, Indiana, residents who live or live on or adjacent to the USS Lead Superfund site. This year, the Clinic and its partner, the Environmental Advocacy Clinic at Northwestern Pritzker School of Law, worked closely with the East Chicago/Calumet Coalition Community Advisory Group (CAG) to advance the CAG’s advocacy beyond the Superfund site and the adjacent Dupont RCRA site.
Through multiple forms of advocacy, the clinics challenged the poor performance and permit modification and renewal attempts of Tradebe Treatment and Recycling, LLC (Tradebe), a hazardous waste storage and recycling facility in the community. Student team members supported the community and helped to present the community’s concerns at a public meeting about the renewal and proposed modification of Tradebe’s permit. The clinics drafted and filed extensive comments that raised significant questions about Tradebe’s applications, and they provided an analysis to environmental regulators arguing that Tradebe should not be exempt from laws applicable to the disposal of hazardous waste. Student team members also facilitated a second meeting between the CAG and US EPA Region V Regional Administrator Debra Shore, IDEM Commissioner Brian Rockensuess, and their leadership teams to discuss the various environmental problems with the Tradebe facility.
The Clinic also supported an application by the CAG for a grant from US EPA for local air monitoring in East Chicago. The Clinic has been working with the CAG, local partners, environmental experts, and regulators since US EPA awarded $200,000 to the CAG for this purpose.
Our team also answered multiple legal and practical questions based on various US EPA actions and statements and inquiries we received from CAG members.
Endangered Species
The Abrams Clinic represented the Center for Biological Diversity (CBD) and the Hoosier Environmental Council (HEC) in litigation regarding the Service’s failure to list the Kirtland’s snake as threatened or endangered under the Endangered Species Act and the Administrative Procedures Act. The Kirtland’s snake is a small, secretive, non-venomous snake historically located across the Midwest and the Ohio River Valley. Development across the species’ range has destroyed large portions of the snake’s habitat, and populations are declining. Climate change also poses a substantial threat to the species, as its habitats are projected to become less suitable for the snake. Accordingly, the Clinic is preparing to sue the Fish and Wildlife Service in the US District Court for the District of Columbia this summer over the Service’s denial of CBD’s request to have the Service list the Kirtland’s snake as threatened or endangered. The Clinic also started using a new e-discovery platform in March 2023 to support the review of documents received via the Freedom of Information Act and the administrative record during the upcoming litigation.
Students and Faculty
Approximately 20 second- and third-year students participated in the Clinic this past academic year, performing complex legal research, reviewing documents obtained through discovery, drafting legal research memos and briefs, conferring with clients, conducting cross-examination, participating in settlement conferences, and arguing motions. Nine students secured clerkships, five students are heading to private practice, and one student received a public interest fellowship.
Former Associate Clinical Professor of Law Robert Weinstock left the Clinic to become the head of the Environmental Advocacy Center at Northwestern University’s Pritzker School of Law, the second of two former Clinic fellows who left the Abrams Clinic to head an environmental law clinic at another law school. Jake Schuhardt joined from private environmental practice as the Clinic’s new fellow. Among other activities, Clinical Professor of Law Mark Templeton joined the Board of Directors of the Environmental Law Institute and the Legal Advisory Committee of the Environmental Protection Network and received the Class of 2023 Award for Clinical Teaching Excellence, voted on by the graduating class.