Abrams Environmental Law Clinic—Significant Achievements for 2019-20

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 immediately proposed a consent decree to settle all legal issues against U. S. Steel. On behalf of Surfrider, the Clinic filed extensive comments on the proposed consent decree, arguing that both the technical requirements for U. S. Steel and the monetary penalty proposed were inadequate.

Throughout 2018 and 2019, as the federal and state governments considered the comments from Surfrider and others, U. S. Steel continued to violate its CWA permit. The Clinic authored a letter from Surfrider’s CEO and Mayor Lightfoot to federal and state political appointees to reiterate their criticisms of the proposed decree and to call for greater monitoring and enforcement. Nevertheless, in November 2019, the federal and state governments moved for entry of a revised consent decree with U. S. Steel. Surfrider opposed, arguing that the technical requirements and monetary penalty were still insufficient. This opposition came in the form of more than 50 pages of briefing, more than 50 pages of expert and client affidavits, and hundreds of pages of exhibits, which the Clinic filed during December and January. With that motion still pending, in May 2020, the Clinic also filed with the court a Notice of Supplemental Authority, noting the applicability to the U. S. Steel case of the U.S. Supreme Court’s decision in Country of Maui, Hawaii v. Hawaii Wildlife Fund, which held that discharges into groundwater may be violations of the Clean Water Act. As of the end of the academic year, we await the court’s decision on several pending motions. The Clinic’s work, which has received significant media attention, helped to spawn other litigation to address pollution of Lake Michigan by other industrial facilities in Northwest Indiana.

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 for use in cooling the facility at very high volumes similar to industrial factories or power plants, but Trump Tower failed to follow federal regulations on that cooling water intake when it was built. Indeed, Trump Tower operated for over a decade before our action without ever conducting the legally-required studies to determine the impact of those operations on aquatic life, or installing all equipment in its water intake system to protect that wildlife consistent with federal regulations. 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. A clinic student argued a novel issue in Illinois state courts—whether state courts have jurisdiction to hear federal CWA claims. While the court ultimately rejected concurrent state jurisdiction of our CWA claim, it teed up this issue for appeal, has allowed us to continue to pursue our public nuisance claims, and endorsed our right to take discovery and argue in support of the State’s similar CWA claims. Litigation is proceeding.

Pacific Ethanol Pekin operates a bioethanol refinery that sits on the banks of the Illinois River in Pekin, IL, a few miles from Peoria. In 2017, the Clinic noticed that Pacific Ethanol had been repeatedly violating its CWA permit by discharging excessively warm wastewater, sometimes up to 40 degrees hotter than its permit allows and by failing to study of its impacts. We served 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. 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 the company’s permits and imposes meaningful penalties. We remain involved in the litigation and permitting process.

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 sewage from flowing into Lake Michigan and polluting the drinking water supply, MWRD has used Lake Michigan water to flush pollutants down away from Chicago. These diversions also create a route for invasive species to move between the Lake and river systems. 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 to reduce such diversions, rather than granting MWRD’s request for additional lake water. All parties moved for summary judgement. The Court granted summary judgment in favor of IDNR and MWRD in November 2018. In 2019, the Clinic completed briefing the appeal. In February 2020, the Illinois Appellate Court rejected our appeal of the Circuit Court’s decision. While we were disappointed that the Appellate Court gave significant deference to IDNR’s decision, the court’s opinion supported standing for environmental organizations that will be helpful in future disputes about flawed administrative agency decisions.

Energy

The Abrams Clinic has 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 advocate for the use of a realistically calculated Social Cost of Carbon (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 $50 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 Clinic filed two amicus briefs on Professor Greenstone’s behalf this year. First, in a challenge to President Trump’s Affordable Clean Energy (ACE) Rule that minimally regulates carbon emissions from existing coal-fired power plants, we argued that EPA erroneously arrived at an absurdly low social cost of carbon, which led to a flawed cost-benefit analysis and undermined the justification for the rule. EPA erred by considering only direct domestic impacts to the territorial United States of carbon emissions—both failing to account for U.S. citizens, investments, and military assets abroad, and undermining the nation’s role in leading a global solution to climate change. EPA also used an outdated, inappropriately high discount rate, which reduced significantly the benefits of reducing carbon. In a second project—a challenge to a decision by the Bureau of Land Management to lease coal to the Alton Coal Development—we argued that the Bureau violated National Environmental Policy Act requirements by monetizing and trumpeting the economic benefits of the project but failing to quantifying the downstream costs of coal combustion.

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. With our support, Soulardarity began regularly to intervene in cases before the Michigan Public Service Commission, which regulates investor-owned utilities like DTE. In these cases, students conduct discovery, draft written testimony, cross-examine utility executives, and file multiple briefs on Soulardarity’s behalf.

This year, we participated in three important proceedings for Soulardarity. In DTE’s Integrated Resource Plan case, where the utility defends its overall plan to generate all electricity it will need over the long-term, we argued that DTE’s analysis of renewable generation was not reasonable or prudent, that DTE did not meaningfully engage low-income consumers in the development of the plan, and that DTE’s proposal was counter to the principles that it claimed to use to develop its plan. In DTE’s rate case, where the utility must justify proposed increases in the rates it charges customers, we argued that DTE’s infrastructure modification plans inequitably provided unreliable and unsafe service to low-income and people of color consumers, that DTE’s fixed bill and low-income renewables pilot projects contained fatal flaws, and that DTE’s requests to increase its rates and return on equity were unjust and unreasonable. In DTE’s Renewable Energy Plan (REP) case, where the utility justifies its strategy for meeting statutory renewable energy requirements, we argued that distributed generation and community solar provide distinct benefits and advance statutory objectives in ways utility-scale projects do not, that community solar is lawful and cost-effective, and that DTE’s REP was the result of a flawed process. Overall, the MPSC ruled in our favor on some points, e.g., rejecting the fixed bill and low-income pilot projects, and acknowledged the validity of our concerns and ordered DTE to do more regarding others, e.g., providing more information about its distribution investment decisions. The Clinic’s representation has elevated the concerns of this community organization and forced both the utility and the regulator to consider issues of equity to an unprecedented degree.

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 worked with residents to advocate against a proposed rezoning of the portion of the site where the former West Calumet Housing Complex once stood. Residents expressed concerns about increased air pollution, disturbance of contaminated soil, failure to address contaminated groundwater, and increase noise and traffic. We worked with experts to understand and to explain to residents the extent and severity of groundwater contamination at the site. 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 navigate interactions with EPA.

Endangered species

The Abrams Clinic represents the Center for Biological Diversity (CBD), Fishable Indiana Stream for Hoosiers, Hoosier Environmental Council, and Prairie Rivers Network in support of their work advocating for legal protection of the lake sturgeon. Lake sturgeon were once abundant in the Great Lakes and other watersheds such as the Mississippi River, but their populations have dwindled severely because of overexploitation and the effects of hydroelectric facilities, pollution, and invasive species. They have been extirpated from many of their historical spawning tributaries and, in some cases, from entire river drainages. If no action is taken, lake sturgeon face extinction. In February 2019, the Clinic sued the U.S. Department of the Interior and the U.S. Fish & Wildlife Service (USFWS) for their failure to make a timely decision on CBD’s petition to list the lake sturgeon as threatened or endangered under the Endangered Species Act. As of the end of the academic year, litigation continues in the U.S. District Court for the Northern District of Illinois.

Policy Reports

In November 2019, the Abrams Clinic published Protecting the Illinois EPA’s Health, so that It Can Protect Ours, a policy report researched by the Abrams Clinic and written jointly with former Illinois Environmental Protection Agency (IEPA) Directors Mary Gade and Doug Scott, and US Environmental Protection Agency (US EPA) Region V Deputy Regional Administrator Bharat Mathur. In the Report, we examine patterns of decline in IEPA’s resources over the past fifteen years. Between 2003 and 2018, staffing levels have decreased by almost 50 percent. Annual appropriations enacted by the Illinois General Assembly have declined precipitously as well, and IEPA’s budget has not kept pace with other state environmental agencies in recent years. These resource deficits have negatively impacted environmental protection programs within the Bureaus of Air, Water and Land, including compliance monitoring, enforcement, accurate reporting, community involvement, and environmental justice. We presented our findings and recommendations to policymakers and environmental activists, including State Representative Ann Williams and volunteer lobbyists at the Sierra Club Illinois Chapter.  The Report has also been featured in the Chicago Tribune, One Illinois, and WTTW.

Abrams Clinic Director and Clinical Professor of Law Mark Templeton and Assistant Clinical Professor Rob Weinstock were among the six authors of Poisonous Homes: The Fight for Environmental Justice in Federally Assisted Housing, jointly published by the Shriver Center on Poverty Law and Earthjustice in June of 2020. Through six case studies, the Report exposes the history of racially discriminatory siting of federally assisted housing on or near environmentally contaminated sites, and examines the laws and policies that allow this practice to continue. The case studies focus on a subset of federally assisted housing built in proximity to Superfund sites and former lead smelting factories, and the public health implications on residents living in these toxic and hazardous areas. Drawing from advocacy work, interactions with residents, as well as study of existing laws and select Superfund sites, the Report presents recommendations for residents, advocates and policymakers necessary for ending the injustices of toxic exposure in low-income housing units.  The Chicago Sun-Times, WBEZ, The Hill, Bloomberg News, and the Philadelphia Inquirer, among other media outlets, covered the report.