Abrams Environmental Law Clinic—Significant Achievements for 2020-21
Water
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 U. S. 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 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 and the monetary penalty proposed were inadequate. Throughout 2018 and 2019, as the governments considered the comments from Surfrider and others, U. S. Steel continued to violate its permit. Nevertheless, in November 2019, the federal and state governments moved for entry of a revised, though substantively similar, consent decree. Again Surfrider opposed on similar grounds. During 2020-21, the Abrams Clinic responded to a reassignment of judges, filed an amended complaint in intervention, and participated in several status conferences. As of the end of this 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 by other industrial facilities in Northwest Indiana and other enforcement against U. S. 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 illegal withdrawals of 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 a decade without ever conducting the legally-required studies to determine its impact on aquatic life or installing sufficient equipment to protect aquatic life consistent with federal regulations. After the Clinic drafted and sent a 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. We continue to pursue our public nuisance claims and are in the midst of intensely adversarial discovery, with a student set to argue a motion to compel soon.
Representing Recovery on Water (ROW), a rowing team for breast-cancer survivors, the Clinic has been working to improve water quality on Bubby Creek, a heavily polluted stretch of the Chicago River, since 2014. Working closely with ROW members to understand their experiences, clinic students have drafted a petition to the Illinois Pollution Control Board to upgrade water quality standards in the area, presented to U.S. EPA and Illinois EPA officials, and have participated in discussions with the City of Chicago about strengthening the CWA permit governing its combined sewer discharges.
The Clinic drafted portions of a comment filed in October 2020 by the National Parks Conservation Association and Save the Dunes to U. S. EPA regarding plans for remediation of groundwater contamination at the Bailly Generation Station coal plant, which abuts the Indiana Dunes National Park. The comment advocated for improved groundwater monitoring, additional restrictions on land use, enrollment in particular state programs, and assurance of sufficient financial resources to cover environmental costs, all with an eye to ensuring parts of property can be incorporated into the neighboring national park once remediation is complete.
In the fall of 2020, the Clinic drafted a 50-page analysis of the extent of the Illinois executive branch’s authority to require that drinking water utilities implement policies to protect low-income customers during and after the COVID-19 emergency and identify possible methods to ensure customers have water service. The memo examined consumer protections (such as a disconnection moratorium, a reconnection mandate, and flexible credit practices), executive and regulatory actions in Illinois to date, and approaches in other states. Advocates used this research as the basis for a bill that was introduced in the Illinois General Assembly.
The Clinic convened a process in 2018 with Current, a nonprofit water innovation hub, and Gerald Keenan, former Chairman of the Illinois Pollution Control Board, to develop a framework in Illinois for a market-based water quality trading program, the Illinois Nutrient Trading Initiative (INTI), to address excessive phosphorous and nitrogen in Illinois waters. In 2020 and 2021, the Clinic produced a white paper that discusses the viability of a market-based solution in Illinois and the core elements needed to enable cost effective nutrient reductions from wastewater treatments plants and the agricultural sector. The Clinic co-hosted a stakeholder workshop on the white paper to discuss barriers, opportunities, and areas of consensus.
Energy
Social Cost of Carbon
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 $125 per ton. Under President Obama, agencies were directed to use the SCC for federal agency rulemakings. After President Trump assumed office in 2017, his Administration consistently refused to use the SCC or used an artificially low figure for it. President Biden has signed an executive order reinstating an Obama-era interagency working group to determine an appropriate, updated SCC for federal rulemakings.
The Clinic drafted three amicus briefs on Professor Greenstone’s behalf this past academic year. In a challenge to President Trump’s Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule that rolled back fuel standards for cars and light trucks, we argued that EPA and NHTSA manufactured an arbitrarily low social cost of carbon, which led to a flawed cost-benefit analysis and undermined the justification for the rule. The agencies 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. They also discounted inappropriately the benefits in the future of carbon reductions now. In challenges to decisions by the Office of Surface Mining Reclamation and Enforcements (OSMRE) to expand coal mining leases—one before the U.S. Court of Appeals for the Ninth Circuit and one before the U.S. District Court for the District of Montana—we argued that OSMRE wrongly rejected using the SCC and that it violated National Environmental Policy Act requirements because it monetized and trumpeted economic benefits of the project but did not quantify downstream costs of coal combustion.
The Clinic also filed a comment on the Trump EPA’s Proposed Rulemaking related to Benefit-Cost Analysis (BCA) under the Clean Air Act (CAA) in the summer of 2020. In May 2021, the Biden EPA rescinded this rule.
Energy Justice
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 representation, Soulardarity regularly intervenes 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. 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. This year, we participated in two contested cases and commented in two other MPSC proceedings.
In October 2020, the Abrams Clinic intervened in DTE’s Voluntary Green Pricing (VGP) program case. We argued that (1) DTE’s proposals for certain new renewable energy offerings were underdeveloped and insufficient to address the needs of low income customers and (2) DTE failed to meet its overdue obligation to propose a community solar pilot or program. As part of making our case, we presented the testimony of a low-income, Black customer, which we believe is the first time such a witness has testified in an MPSC proceeding. In June 2021, the Commission approved a settlement agreement in which DTE (1) will provide $900,000 of funding for three community solar projects and (2) will create a Low Income Solar Council that will assist in the planning for community solar projects and that will be staffed, in part, by low-income community members.
In April 2021, we intervened in DTE’s securitization case to oppose DTE’s proposal to securitize the remaining book value on its River Rouge coal-fired power plant. While the Commission utimately approved DTE’s proposal, Soulardarity lay a marker that the public should not foot the bill for DTE’s imprudent and environmentally-damaging investments and that DTE needs to develop and implement a sufficient transition plan for the River Rouge community.
With regard to non-litigation matters, in the fall of 2020 we submitted comments urging the Commission’s Staff to consider public health and environmental justice when reviewing future utility integrated resource plans. We sent a letter to the Michigan Advisory Council on Environmental Justice urging it to coordinate with the Michigan Department of Environment, Great Lakes, and Energy on environmental justice matters in these cases. In May 2021, we presented information about various community solar models and their benefits at a stakeholder session on New Technologies and Business Models. We spoke to an audience of about 70 people, including representatives of utilities and renewable developers, about the benefits of community-owned community solar and how to serve better low-income, people-of-color communities.
Land Contamination and Lead
The Abrams Clinic continues to represent residents in East Chicago, Indiana 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 experts to understand and to explain to residents the extent and severity of groundwater contamination at the site. We investigated potential sources of air pollution and various legal bases by which the residents and local officials could address them. 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.
The Clinic has continued its fight against lead contamination since publishing Poisonous Homes: The Fight for Environmental Justice in Federally Assisted Housing with Earthjustice and the Shriver Center on Poverty Law in June 2020. We have advocated for U.S. EPA and the Department of Housing and Urban Development to implement our recommendations and followed up on a damning report about East Chicago by HUD’s Office of Inspector General. We have investigated systematic problems with lead in the drinking water in day care facilities and schools in Illinois, as well as various liability theories for addressing different types of lead contamination.
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.
Working with an attorney at the Western Environmental Law Center, students identified mistakes made by the Burean of Land Management (BLM) when issuing the Resource Management Plans (RMP) and Resource Management Plan Amendments (RMPA) for BLM’s Buffalo and Miles City Field Offices that govern fossil fuel extraction in those areas. Specifically, BLM and the U.S. Fish & Wildlife Service did not complete proper consultation and reinitiate consultation regarding the pallid sturgeon—a highly endangered fish species—when issuing the two RMPAs. Students marshalled the factual evidence and legal standards to draft a request for the agencies to reinitiate their consultation.
Students
Twenty 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, and arguing motions. Of the 15 graduating students, five are immediately entering into government and public interest positions—four with an environmental focus; five students secured clerkships.