Protecting Our Great Lakes, Rivers & 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 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 of their claims against U. S. Steel. On behalf of Surfrider, the Clinic filed extensive comments on the proposed consent decree, arguing that the technical requirements and the monetary penalty 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 it on similar grounds. The Court finally ruled on the proposed consent decree just before the 2021-22 academic year began. During 2021-22, the Abrams Clinic responded to that ruling in both the governments’ and Surfrider’s cases. While the Abrams Clinic team was assessing whether to appeal the entry of the Consent Decree, they were also investigating a follow-up enforcement action by the Indiana Department of Environmental Management. Meanwhile, U. S. Steel again violated its Clean Water Act permit and the consent decree. These developments pushed Surfrider and the City of Chicago to pursue additional judicial relief in their case—in which they could introduce up-to-date information—rather than appealing the consent decree. Doing so created a host of procedural complexities as U. S. Steel sought to dismiss Surfrider’s existing 2018 complaint under the doctrine of res judicata in light of the entry of the consent decree. After multiple rounds of complicated briefing during the Winter and Spring quarters, Surfrider and the City await the judge’s decision on U. S. Steel’s motion to dismiss and a motion for leave to amend their complaints. 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 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 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 Trump Tower, the State of Illinois filed its own case in the summer of 2018, and the Clinic successfully moved to intervene in that case. In 2021-22, Clinic students proceeded through an intensely adversarial discovery process, including negotiating and analyzing document productions, consulting with an expert on cooling water intake system design, preparing for depositions, and negotiating with Trump Tower and the Illinois Attorney General to set the terms of a protective order. One highlight was in fall 2021 when the judge granted our motion to compel discovery of Trump Organization financial information, a motion drafted and argued by a member of the class of 2022.
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 it 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 provided deep historical and legal research support to the National Parks Conservation Association’s (NPCA) efforts to galvanize a government response to significant shoreline erosion threats to the Indiana Dunes National Park. For this effort, the Clinic reviewed hundreds of pages of government documents and Congressional budgetary enactments spanning nearly a century. Students develop arguments for additional federal and state funds to analyze—and ultimately address—erosion related to industrial development along Lake Michigan that is chipping away at National Park beaches.
In concluding work begun in 2018 with Current, a nonprofit water innovation hub, and Gerald Keenan, former Chairman of the Illinois Pollution Control Board, the Clinic released a whitepaper calling for the development of a market-based water quality trading program to address excessive phosphorous and nitrogen in Illinois waters. The paper reviewed the viability of a market-based solution in Illinois and the core elements needed to enable cost-effective nutrient reductions from wastewater treatment plants and the agricultural sector.
Energy and Climate
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, 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 three contested cases and commented in two other MPSC proceedings.
First, the Clinic represented Soulardarity, a Highland Park, MI-based organization, in a case where the local utility, DTE Electric, sought MPSC approval to implement a program where customers could prepay for their electricity. Soulardarity objected to DTE’s request that the MPSC waive rules (i) that require utilities to give notice to customers before shutting off those customers for failure to pay, (ii) that provide time and options to customers to fix billing issues, and (iii) that give customers rights to contest the utility’s actions. Our clients also opposed the program because it did not address the more significant problem of unaffordable residential electricity rates and increased shutoff risks.
Second, the Clinic advocated on behalf of Soulardarity and a new Detroit-based client, We Want Green, Too, in DTE’s latest rate case. While DTE sought MPSC approval to raise rates across the board, the proposed rates are higher in absolute amounts for residential customers than for other ratepayer categories, and the rate of increase for residential customers is higher than the rates of increase for other ratepayer categories, all at a time when residential ratepayers are struggling with already unaffordable bills. In addition, DTE proposes to disincentivize privately-owned solar by reducing the price it pays for electricity generated through such systems. The company also continues to postpone upgrading the distribution grid meaningfully in low-income, people-of-color communities, hindering the ability of those residents to benefit from the clean energy transition.
In a third case, the Clinic represented Urban Core Collective (UCC), a Grand Rapid, MI-based nonprofit, in Consumers Energy’s Integrated Resource Plan (IRP) case. Michigan law requires utilities to propose an IRP, in which a utility projects the demand for electricity during the following decades and presents a plan for how to meet that demand. In this case, Consumers Energy proposed retiring two coal plants, acquiring several natural gas facilities, and limited expansions of solar energy and energy efficiency programs. While supporting the closure of the coal-fired power plants, the Clinic argued that the company should not get the full return for those environmentally-damaging past investments and should not acquire natural gas facilities owned by one of the company’s affiliates. The Clinic also maintained that the company needed to improve public participation and consideration of environmental justice. With most other intervening parties, UCC joined a settlement that gave the company a lower rate of return than initially asked for, committed $33 million to support low-income customers financially, facilitated the closure of the coal plants, rejected the affiliate natural gas acquisitions, and incorporated more evaluations of the environmental justice impacts of the future plans. The settlement also required increased public participation in the development of future IRPs. Our client viewed the settlement as a meaningful success.
Outside of litigation, Clinic students worked with Soulardarity to critique DTE’s plan to upgrade its distribution grid, focusing on how it could better incorporate environmental justice. The Clinic submitted comments to DTE and the MPSC in their proceeding seeking more information about the impact of storms and reliability, as well.
Devoir de Vigilance
The Abrams Clinic, in collaboration with the Law School’s Global Human Rights Clinic, investigated potential failures of major multinational corporations to comply with France’s Devoir de Vigilance (Duty of Vigilance) Law. The law requires French corporations to publish yearly plans that map, assess, mitigate, and monitor risks in their supply chains and the supply chains of subsidiary companies. Given the law’s recent enactment in 2017 and the fact that relatively few cases have yet been litigated under it, Clinic students spent the initial part of the year clarifying the scope of the law and assessing the feasibility of using the law to challenge insufficient action on environmental and human rights issues, including climate change. Students investigated industry best practices and interviewed several subject matter experts in the relevant industries. The team developed draft notices of intent to sue and a complaint.
Land Contamination and Lead
The Abrams Clinic continues to represent East Chicago, Indiana, residents who live or live on or adjacent to the U.S.S. 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 goals for cleanup of the U.S.S. Lead Superfund Site and the former Dupont site. The Clinic investigated potential sources of air pollution and various legal bases by which the residents and local officials could address them. The Clinic requested that the U.S. EPA and the Indiana Department of Environmental Management (IDEM) conduct an environmental justice analysis of East Chicago before renewing the permit for Tradebe, a hazardous waste incinerator in the community. The Clinic also helped to facilitate a meeting between the CAG and U.S. EPA Region V Regional Administrator Debra Shore, IDEM Commissioner Brian Rockensuess, and their leadership teams. The Clinic also contributed significantly to an application by the CAG for a grant from U.S. EPA to improve local air monitoring in East Chicago. Our team also answered multiple legal and practical questions based on various U.S. EPA actions and statements and inquiries the Clinic 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 the 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 also investigated systematic problems with lead in the drinking water in daycare facilities and schools in Illinois.
The Abrams Clinic represented the Center for Biological Diversity (CBD), Fishable Indiana Stream for Hoosiers, Hoosier Environmental Council (HEC), and Prairie Rivers Network in support of their work advocating for the 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. In September 2021, the District Court granted the Clinic’s motion for summary judgment on liability regarding the Service’s failure to comply with Endangered Species Act (ESA) deadlines. In the wake of that decision, Clinic students successfully negotiated against the U.S. Department of Justice regarding attorneys’ fees owed by the government for this litigation.
The Abrams Clinic also represented CBD and HEC in emerging litigation regarding the Service’s failure to list the Kirtland’s snake as threatened or endangered under the ESA. 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, in June 2022, the Clinic sued the Service in the U.S. District Court for the Northern District of Illinois over the Service’s denial of CBD’s request to have the Service list the species as threatened or endangered.