Abrams Environmental Law Clinic—Significant Achievements for 2018-19
Water
In 2016, the Chicago Chapter of 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 (CWA) 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. The federal government and the state of Indiana filed their own, separate case and proposed a consent decree to settle all legal issues against U. S. Steel; Surfrider and the City agreed to stay their litigation. However, 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 Clinic filed extensive comments on the proposed consent decree.
As of June 2019, the governments have not issued an updated proposed consent decree, and we are preparing to oppose the governments’ motion to lodge the consent decree, if necessary. Last fall, we moved to intervene in the governments’ case, and in December 2018, the Court granted the motion. Pending motions before the Court include our motion to consolidate the governments’ case into ours and U. S. Steel’s motion to dismiss the amended complaint that we filed in the governments’ case against U. S. Steel after the U. S. Steel facility committed further CWA violations by discharging foam into Burns Waterway in November and December 2018.
The Abrams Clinic has worked with a coalition of both local and national environmental organizations to initiate enforcement of the CWA against the Chicago-based Trump Tower. Trump Tower draws water from the Chicago River to assist in cooling the facility. However, Trump Tower has never 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. After the Clinic drafted and sent a CWA-required notice of intent to sue to Trump Tower, the State of Illinois filed its own case in the summer of 2018, and we successfully moved to intervene in that case. Settlement negotiations are underway as the litigation proceeds.
Pacific Ethanol Pekin operates a bioethanol refinery that sits on the banks of the Illinois River in Pekin, IL, a few miles from Peoria. The company has a National Pollutant Discharge Elimination System (NPDES) permit that allows it to discharge its wastewater into the river. In 2017, the Clinic noticed that Pacific Ethanol had been repeatedly violating its NPDES permit (thereby violating the CWA) by discharging pollutants into the river in excess of its permit limits. Most notably, Pacific Ethanol was discharging excessively warm wastewater, sometimes up to 40 degrees hotter than its permit allows. We filed a Notice of Intent to Sue (NOI) in November 2017 on behalf of our clients Sierra Club and Prairie Rivers Network. In response, the State filed its own case in January 2018, alleging similar violations, and in August 2018, the State and Pacific Ethanol entered into an Interim Order to address some of these issues. In June 2019, we commented on a proposed permit modification for the facility, and we intervened in the State’s case to help ensure that it enforces compliance with Pacific Ethanol’s permits and impose appropriate penalties.
In the fall of 2018, the Abrams Environmental Clinic learned that the State of Illinois’ Vienna Correctional Center (VCC) was likely violating the CWA. We researched the facility and its history of violations to determine that VCC frequently violated the conditions of its discharge permit and regularly failed to submit mandatory reports of its discharges. In this case, we have elected to attempt first to work cooperatively with the state to correct the problems at VCC. To that end, we sent an informal letter of concern and have prepared research into potential corrective actions, including training prisoners to become wastewater treatment operators, while readying ourselves for litigation, if necessary.
In 2016, the Abrams Clinic began 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. In 2017, the Abrams Clinic filed a complaint in the Circuit Court of Cook County 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 then moved for summary judgement. The Court granted summary judgment in favor of IDNR and MWRD in November 2018. The Abrams Clinic filed an appeal with the Appellate Court of Illinois in December 2018, and we and the opposing parties are currently briefing our dispute, with oral argument likely in Fall 2019.
Energy
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.
The Abrams Clinic had two victories in academic year 2018-19 in its work with Professor Greenstone. In the prior academic year, the Clinic filed amicus briefs in two sets of litigation, one related to the proposed expansion of the Spring Creek Mine in Montana, and the other 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. In the Spring Creek case, the magistrate judge adopted some of the reasoning that we put forth in our amicus brief, rejecting the government’s arguments against using the SCC. In the coal moratorium case, the district court judge rejected the government’s arguments against performing a new environmental impact statement, which we had argued was required under the law. Unfortunately, in June 2019, another federal court rebuffed on procedural grounds our attempts to file an amicus brief by Professor Greenstone in a challenge to an expansion of the Bull Mountains Mine. We believe that other courts in the future will allow Professor Greenstone to file amicus briefs in other similar cases.
In addition, in academic year 2018-19, the Clinic commented on four rules and standards proposed by the Environmental Protection Agency and U.S. Forest Service. First, we commented on EPA’s proposed New Source Performance Standards (NSPS). Our Comment concerned EPA’s proposed slackening of regulations on new and modified coal-fired power plants, and argued that EPA still had to complete a full assessment of greenhouse gas impacts, even if it predicted a small number of coal plants would be built. Second, we commented on EPA’s proposed Mercury and Air Toxics Standards (MATS) rulemaking. Specifically, in response to EPA’s proposed partial rollback of important regulatory standards for electric generating units, we argued that co-benefits, which are reductions to pollutant emissions that are not targeted by a given regulation but are reduced as an ancillary benefit due to the control technology implemented, legally can and, as a matter of regulatory policy, should be considered when determining whether regulation is “appropriate and necessary.” Third, we commented on the U.S. Forest Service’s (USFS) Oil and Gas Leasing Advanced Notice of Proposed Rulemaking. USFS proposed to curtail its National Environmental Protection Act (NEPA) analysis for oil and gas leasing on national forest land. Our Comment argued that USFS should include a SCC framework directly in its NEPA regulations in order to best fulfill its statutory obligations and ensure that it is taking a consistent “hard look” at climate change impacts. Finally, we commented on the Affordable Clean Energy Rule Notice of Proposed Rule Making. Our Comment concerned the replacement of the Clean Power Plan with a much laxer regime that gave states wide discretion in setting technology requirements for existing coal plants. We argued that the costs and benefits to the United States and its citizens are fully accounted for only if EPA uses a measure of the SCC that reflects climate change’s global damages and employs realistic discount rates, which EPA fails to do in the RIA and Proposed Rule. We also critiqued EPA’s lack of a discernible cost-reasonableness standard in choosing the “best system of emissions reduction,” and encouraged EPA to utilize a cost benefit analysis (CBA) based on the SCC in evaluating state plans, and to require states to base their state plans on a similar CBA. Finally, in response to a specific EPA question, the Comment considers the role that trading can play in the ACE regulatory regime.
The Abrams Clinic continued to work 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. The Michigan Public Service Commission (MSPC) is a state agency that regulates utilities, which are state-sanctioned monopolies. DTE and Consumers Energy are the major ones in Michigan, and DTE services Detroit and Highland Park. With our support, Soulardarity began regularly to intervene in MPSC cases and to contribute to stakeholder workgroups organized by MPSC staff.
More specifically, this past academic year, we represented Soulardarity in its interventions in DTE’s Renewable Energy Plan (REP) case, the most recent DTE rate case, and DTE’s Integrated Resource Plan (IRP) case. We also participated and presented—and facilitated the participation and presentations of Soulardarity’s Executive Director Jackson Koeppel—in two separate stakeholder processes related to net metering and to third-party community-energy projects. In our advocacy, we promoted renewable energy, solar energy, distributed energy, and community solar; we identified limits that the MPSC has imposed on distributed energy that were inconsistent with Michigan Public Acts 341 and 342 (2016); we identified failures in DTE’s voluntary green pricing programs and low-income assistance programs, which impact the ability of low-income households to secure clean energy; and we identified safety problems and underinvestment by DTE in low-income communities. For some of these efforts, we secured the specific endorsement of other local energy and environmental advocates, such as Detroiters Working for Environmental Justice and EcoWorks; in other cases, Soulardarity and we coordinated with these groups to make sure that our positions were aligned with theirs.
With our assistance, Soulardarity was able to participate regularly and have an impact in many of the most important proceedings and stakeholder workgroups involving clean energy in southeastern Michigan. As one example, Administrative Law Judge Sharon Feldman recently made a preliminary finding and determination that DTE had failed to justify its REP, which relied exclusively on utility-owned wind and failed to consider community solar, among other forms of renewable energy. Soulardarity pointed out in its brief that DTE basically just asked the MPSC to trust the utility about its plans; ALJ Feldman squarely rejected that, and she recognized some of the other considerations that we raised on Soulardarity’s behalf in its testimony and briefing. In the DTE rate case, as another example, the Commission’s decision acknowledged concerns that we raised about safety issues and about the inequity of some fees DTE wanted to impose on low-income consumers. The Commission also stated that requirements related to ownership and premises should be interpreted broadly to allow renters or owners in multi-unit dwellings to participate in distributed generation. We await the proposals that staff is developing for the third-party community-energy projects stakeholder process, but we are hopeful that the participation of Soulardarity and the clinic will lead to more effective and equitable approaches than would have existed otherwise.
We participated in and supported the Illinois Commerce Commission’s (ICC’s) NextGrid process. Illinois Future Energy Jobs Act (FEJA) required the ICC to launch a process that would look at the future of Illinois electricity grid. The ICC implemented a process by which seven working groups would review, discuss, and report back on their views on topics ranging from new technology deployment and grid integration, to metering, communications and data, to customer and community participation, among others. The clinic worked closely with Mary Gade, the facilitator for Working Group 6 on regulatory and environmental policy issues. We helped Ms. Gade develop the topics for the working group’s four sessions, namely on the environmental impacts of distributed energy resources, climate and grid resiliency, beneficial electrification, and pathways to decarbonization. We developed the discussion questions for each session, facilitated breakout conversations, and produced minutes for each meeting, the first draft of the working group chapter, the responses to comments from working group participants and the public, and the final draft of the working group chapter.
Working with the Illinois Environmental Council (IEC), we drafted clean energy, energy –efficiency, and environmental requirements for significant pieces of legislation. For the recreational cannabis legislation, we produced language that requires growers to use best-in-class energy-efficient lighting systems, to recycle materials, to minimize water use and runoff, and to treat wastewater, as well as creates obligations for them to develop plans to implement these requirements and to report on their compliance. For a bill relating to data centers, we drafted provisions that would require best-in-class energy efficiency requirements for new data centers, and that would push existing centers to adopt more efficient technologies over time. We also drafted legislation that would improve disclosure of information to environmental justice communities when facilities are seeking new or renewed environmental permits.
Land contamination
The Abrams Clinic continues to represent residents in East Chicago, IN who live or lived on or adjacent to the U.S.S. Lead Superfund site. This year, the Clinic worked closely with the East Chicago/Calumet Coalition Community Advisory Group (the “CAG”) to advance the CAG’s goals for cleanup of the USS Lead Superfund Site and the former Dupont site. We helped the CAG address a variety of legal questions, and provided strategic support as CAG members attempted to navigate difficult requirements for obtaining a government grant.
Specifically, the Clinic played a leading role in the search for a Technical Advisor, who will help the CAG interpret data released by the EPA as part of its study of groundwater on the USS Lead and Dupont sites. The CAG is able to hire a Technical Advisor using a Technical Assistance Grant that it received from the EPA last year. We assisted CAG members with the hiring process, seeking a number of qualified candidates, coordinating interviews, and providing guidance as CAG members prepared to select an Advisor. Our team also supported the CAG in submitting two public comments in response to the EPA’s proposed amendment to its cleanup plan for Zone 1 of the USS Lead site. Of the EPA’s four proposed remedies for the site of the former West Calumet Housing Complex, the CAG supported the most protective remedy. We helped the CAG push for their preferred cleanup plan through written comments, participation at public EPA meetings, and political advocacy. Beyond these major projects, our team also answered a variety of legal and practical questions based on various EPA actions and statements and on inquiries we received from CAG members. We also prepared several basic informational documents to help CAG members and other community members navigate the complexities of dealing with the EPA.
Endangered species
The Abrams Clinic partnered with the Center for Biological Diversity (CBD) to support their work advocating for preservation of the lake sturgeon. At the end of May 2019, the Clinic initiated litigation against the U.S. Department of the Interior and the U.S. Fish & Wildlife Service (USFWS) for their failure to respond to CBD’s ESA listing petition by sending a 60-day Notice of Intent to Sue. The team also drafted the complaint in this matter, which will be submitted this later this summer if no timely response is received from the Interior or USFWS. In addition, the Clinic worked with CBD to develop an advocacy program before the Federal Energy Regulatory Commission’s to ensure that lake surgeon are protected through the processes for hydropower plant licensing and relicensing.