Abrams Environmental Law Clinic—Significant Achievements for 2017-18
More than a year ago, the Surfrider Foundation asked the Abrams Clinic to explore water quality issues along the Lake Michigan shoreline in northwest Indiana, where its members like to surf. During that investigation, in April 2017, the U. S. Steel plant in Portage, Indiana spilled approximately 300 pounds of hexavalent chromium into Lake Michigan; in the prior five years, the facility had multiple other discharges of pollutants in violation of its Clean Water Act permit. In January 2018, the Abrams Clinic filed a suit on behalf of Surfrider against U. S. Steel, alleging multiple violations of U. S. Steel’s discharge permits. The City of Chicago filed suit shortly after, followed by the federal government and the state of Indiana. The government proposed a consent decree to settle all legal issues against U. S. Steel. Surfrider and the City found the consent decree lacking, with regard to both the technical requirements for U. S. Steel and the monetary penalty proposed. The Abrams Clinic filed extensive comments on the proposed consent decree, and it plans to move forward with its litigation if the consent decree is not drastically improved.
The Abrams Clinic is currently working with a group of local and national environmental organizations to seek review of an order by the Illinois Department of Natural Resources (IDNR) which allows the Metropolitan Water Reclamation District of Greater Chicago (MWRD) to take an additional 420 billion gallons of water from Lake Michigan for use in the Chicago Area Waterway System. After the flow of the Chicago River was reversed in 1900 to prevent waste from flowing into Lake Michigan and polluting the drinking water supply, MWRD has used Lake Michigan water to flush pollutants down the river and away from Chicago. The Abrams Clinic filed a complaint against IDNR, alleging that IDNR should have considered conservation practices that MWRD could have implemented, rather than just granting MWRD’s request for additional Lake Michigan water. All parties have moved for summary judgment.
The Abrams Clinic has worked with a coalition of both local and national environmental organizations to initiate enforcement of the Clean Water Act against the Chicago-based Trump Tower. Trump Tower draws water from the Chicago River to assist in cooling the facility. However, Trump Tower appears never to have conducted the legally-required studies to determine the impact of those operations on aquatic life, nor has it installed the required equipment in its water intake system to protect that wildlife. The Clinic drafted and sent a CWA-required notice of intent to sue to Trump Tower, after which time if state or federal regulators do not instigate regulatory action, the Clinic will be empowered to bring suit against Trump Tower. The notice of intent to sue received media attention, including a frontpage story in the Chicago Tribune.
The Abrams Clinic has also continued representing Michael Greenstone, Director of the Energy Policy Institute at Chicago and former Chief Economist at the Council of Economic Advisers under President Obama in his work to promote the development of the Social Cost of Carbon (SCC), and advocating for the use of a realistically calculated SCC in regulatory proceedings. The SCC is an estimate of the environmental, health and societal externalities imposed by the emission of a ton of carbon dioxide, and it is estimated at approximately $40 per ton. Under President Obama, agencies were directed to use the SCC for federal agency rulemakings. Since President Trump assumed office in 2017, his Administration has consistently refused to use the SCC or has used an artificially low figure for it.
On behalf of Professor Greenstone, the Clinic has advocated for using a realistic SCC in agency project approvals and in rulemakings through official comments and the filing of amicus briefs. The Clinic’s work in this field includes: filing a formal comment on the draft Supplemental Final EIS and an objection to the draft Record of Decision for the proposed coal lease expansion of the West Elk Mine in Colorado for failing to include a thorough SCC analysis; filing a comment on the Environmental Protection Agency’s Advanced Notice of Proposed Rulemaking for State Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units urging any future rulemaking to consider an SCC component; commenting on the Office of Surface Mining’s (OSM) draft EIS for the proposed coal-lease expansion at the Rosebud Mine in Montana and its proposed expansion of the Bull Mountain coal mine near Billings, Montana nothing OSM’s failure to include an SCC analysis; and, submitting comments criticizing the Administration’s proposed rulemaking to repeal the Obama-era Clean Power Plan for its non-rigorous application of SCC analysis. The Clinic’s ongoing work includes the filing of amicus briefs in litigation related to the proposed coal-lease modification for the Spring Creek Mine in Montana and to Secretary of the Interior Ryan Zinke’s secretarial order halting the previously-ordered programmatic environmental impact review of the federal coal-leasing program – the first such review since 1979.
The Abrams Clinic worked with Soulardarity, a grassroots non-profit working to bring community solar— a solar-electric system that provides power and/or financial benefit to more than one subscriber—to low-income and people of color communities in Highland Park, Michigan. Highland Park lost many of its streetlights after DTE Energy, the local utility company, repossessed them when the town fell behind on its payments, and Soulardarity formed to build solar-powered and community-owned streetlights. Recently, the Clinic has helped Soulardarity intervene in DTE Energy’s proposed plan to comply with a statutory mandate to generate 15% of its energy supply from renewable energy sources. DTE Energy intends to rely primarily on industrial wind farms to comply with the mandate. Soulardarity believes DTE Energy should incorporate community solar into their proposed plan because it provides better grid resilience and security and allows the community to become a participatory stakeholder in its own energy generation. The Clinic has helped Soulardarity strategize for its intervention in the matter currently before the Michigan Public Service Commission (MPSC) and is representing the organization in the MPSC proceeding. This follows on work which the Clinic performed earlier in the year in which it presented Soulardarity’s concerns to the MPSC about the MPSC’s staff proposal to change how the state credited customers with solar systems for the power their solar systems produced, e.g. net-metering.
The Abrams Clinic has supported the Illinois Commerce Commission (ICC) in its “NextGrid” study, an 18-month study examining critical issues facing the future of the state’s electric utility industry. As part of these efforts, the Clinic helped organize and facilitate workshop discussions on topics ranging from climate change adaptation and resilience, to pathways to a decarbonized electric grid, to beneficial electrification. Approximately 30 participants, including representatives from Illinois’ regulatory agencies, its two primary utilities, and environmental policy advocates, attended these sessions. These workshop discussions shall provide the basis of a portion of the ICC’s final report.
The Abrams Clinic also assisted in preparing a strategy and advocacy tool kit for the Michigan chapter of the National Association for the Advancement of Colored People’s (NAACP) Environmental and Climate Justice Program, which informed its communities about environmental and climate justice issues. The documents summarized available measures for promoting just energy policies and energy efficiency practices and provided examples of concrete actions Michigan NAACP leaders and members can take in their homes and in their communities to achieve those goals. Resources in the report range from a guide to contacting local representatives, to directions for signing up for community solar projects, to recommendations for increasing household energy efficiency.