Interdisciplinary Environmental Clinic News

The IEC At Work


Prof. Lipeles to Receive Prestigious Sierra Club Award

Posted July 2015

Maxine Lipeles, founder and director of the Interdisciplinary Environmental Clinic, has been selected by the Sierra Club to receive the prestigious 2015 William O. Douglas Award. The award recognizes those who have made outstanding use of the legal/judicial process to achieve environmental goals. The award will be presented to Lipeles at a celebration on September 12 at the Marines’ Memorial Club & Hotel in San Francisco.

Lipeles has been consistently recognized as one of the best environmental attorneys in the country. She is the past recipient of numerous awards, including Best Lawyers’ 2014 St. Louis Environmental Litigation Lawyer of the Year, the Missouri Coalition for the Environment’s Lewis Green Environmental Defense Award, and a Professor of the Year Award from the law school’s Student Bar Association. In addition to her teaching and administrative duties running the clinic, she is the author and co-author of two casebooks: one on hazardous waste and another on water pollution.

In the clinic, Lipeles works with interdisciplinary teams of students and faculty who represent nonprofit groups, communities, and individuals pursuing legal action to protect the environment. The clinic handles a wide range of matters, including air and water pollution, solid and hazardous waste, and environmental justice, in Missouri, southern Illinois, and nationally.

Founded by legendary conservationist John Muir in 1892, the Sierra Club is now the nation's largest grassroots environmental organization. According to its website, its successes range from protecting millions of acres of wilderness to helping pass the Clean Air Act, Clean Water Act, and Endangered Species Act. More recently, the club has led the charge to move away from the dirty fossil fuels that cause climate disruption and toward a clean energy economy.

In addition to the Sierra Club award, Lipeles also recently received the Clarence Darrow Award from Saint Louis University’s Public Interest Law Group. The award honors legal professionals who have shown a commitment to bettering society through public service.

Interdisciplinary Environmental Clinic Files Air Pollution Amicus Brief in U.S. Supreme Court

Posted March 2015

Students and faculty in the Interdisciplinary Environmental Clinic (IEC) have filed an amicus brief on behalf of air pollution control and air quality regulation experts in an important environmental case before the Supreme Court of the United States. The case, Michigan v. EPA, involves a challenge to the EPA’s Mercury and Air Toxics Standards (MATS), which seek to protect the health of citizens by limiting the amount of hazardous air pollutants that can be emitted by power plants.

Electric utilities that rely on coal and oil, mining concerns, and several states, including Missouri, challenged the rule, which they believe to be “among the most expensive rules that the EPA has ever promulgated.” The U.S. Supreme Court heard oral arguments in the case on March 25.

“The Supreme Court will have to decide whether the EPA acted reasonably when it made the decision that the regulation of hazardous air pollutants emitted by coal- and oil-fired power plants was appropriate and necessary based on the information available at the time,” says Michael Benson, a second-year law student who worked on the brief supporting the EPA rule.

Added IEC clinic student Xinyuan (Lisa) Zhang, a pre-med senior majoring in biology and environmental policy, who also worked on the brief: “The evidence shows that the EPA not only considered the public health risks of mercury and other air toxics emitted by power plants, but also the practicability of regulation, including the availability and cost-effectiveness of technologies available to the industry for controlling these pollutants.”

Both students worked under the supervision of Clinic Attorney Elizabeth Hubertz and Clinic Scientist Kenneth Miller.

The brief contains the arguments of several experts who have decades of experience in the regulation and control of emissions from fossil fuel-fired power plants. In the brief, the experts explain the pollution control technologies that are available to reduce plants’ harmful emissions of mercury, heavy metals, and acid gases. The brief argues that operation and cost of these control devices was well-known within the industry, and was known to the EPA when it made the decision to regulate the pollutants. Indeed, the EPA’s decision explicitly rested on the fact that control technology existed and was feasible to install.

Many environmental and public health groups, such as the American Academy of Pediatrics, support the EPA rule. So do some of the cities and states that have their own mercury regulations and utilities that have already invested in the technologies required for cleaner operation. In fact, according to the U.S. Energy Information Agency, nearly two-thirds of those generating U.S. coal-fired electrical capacity had already installed the environmental control equipment necessary to comply with MATS two years before the rule took effect.

The EPA made its initial decision to regulate the pollutants in December 2000, but did not issue a rule at that time. In 2005, the EPA changed course and decided that regulation was no longer necessary. That decision was successfully challenged in court. The EPA then re-affirmed its decision that regulation of the industry was appropriate and necessary and released a proposed MATS rule in 2012.

The MATS rule was upheld last year in a 2-1 decision by the D.C. Circuit and was slated to take effect this year. The U.S. Supreme Court then agreed to hear the challenge filed by states and industry, limiting its consideration to whether the EPA was required to conduct a cost-benefit analysis when it first made the decision to regulate instead of when it promulgated the regulation itself.

Amici state in the brief: “[The EPA] was aware of the control technologies and strategies available, it was aware of the factors driving costs of installation and use of those technologies, and it was aware of technological advances on the horizon that could be adopted by [utilities] in the near future … Regulation was appropriate because it was practicable and achievable by the industry without compromising grid reliability or economic security.”

• Amicus brief [view] • Oral argument transcript [view] • SCOTUSblog coverage of oral argument [view] • New York Times coverage [view] and [view] • USA Today coverage [view] • Washington Post coverage [view]

IEC Wins Victory in Missouri Supreme Court in Coal Ash Landfill Case

Posted February 2015

Interdisciplinary Environmental Clinic (IEC) students and faculty are celebrating another victory, this time in the Supreme Court of Missouri, involving an effort to block a proposed coal ash landfill. Missouri’s highest court issued a unanimous decision in favor of the IEC’s clients—the Labadie Environmental Organization and 11 individuals who live near Ameren’s Labadie power plant.

The case, Ruth Campbell et al. v. County Commission of Franklin County and Union Electric Company d/b/a Ameren Missouri,challenges Franklin County’s 2011 adoption of zoning amendments. The IEC’s clients oppose the measure, which would facilitate Ameren creating a coal ash landfill next to the Labadie plant. The environmental organization and residents are primarily concerned about the proposed landfill’s location in the Missouri River flood plain and about possible groundwater contamination.

“In representing the plaintiffs, the IEC successfully argued that Franklin County failed to hold a valid public hearing before amending its zoning regulations to allow Ameren’s proposed landfill,” explains Maxine Lipeles, senior lecturer in law and IEC co-director. “Although Ameren initially drafted the zoning change and asked Franklin County to adopt it – and even though Ameren’s proposed landfill was the only one that qualified for approval under that zoning change, county officials told the hundreds of people attending the public hearing that they could not discuss the landfill proposal.”

Current IEC team members include third-year law students Zachary Miller, Jessica Kraft-Klehm, and Christopher Moran and second-year law student Gwenn Barney, as well as undergraduate student Courtenay Willcox.

Miller says his work with the IEC, and specifically on the Missouri Supreme Court case, has been an invaluable experience. “It has by far been the best practical training I’ve received in law school,” he observes. “I got to write and edit our briefs before the court, including successfully opposing a motion to dismiss the case. Participating in the landfill case also gave me my first taste of victory!”

The IEC has been representing the same clients for nearly four years, as the case has worked its way through the courts. The Circuit Court initially ruled in 2012 that the claim of an invalid hearing was legally insufficient. The Court of Appeals then reversed that ruling in a 2-1 decision in July 2014, and transferred the case to the Missouri Supreme Court. The Supreme Court’s February 3, 2015 decision reinstates the hearing claim and sends the case back to the Circuit Court.

Additionally, teams of clinic students have been working on related legal issues since 2009, when Ameren first announced its landfill plans. At that point, the Labadie Environmental Organization was formed with the help of the law school’s Entrepreneurship & Intellectual Property Clinic. The caseload has since expanded to involve four active litigation matters.

“In representing our clients, our students have developed professional skills and participated in many different types of advocacy and strategic decision-making,” Lipeles says. “We are pleased that the students’ perseverance and talented advocacy skills on behalf of our clients have resulted in yet another victory through this favorable Supreme Court ruling.”

view decision here]

 

IEC Wins Victory in Missouri Court of Appeals in Coal Ash Landfill Case; Grants Support Ongoing Work

Posted July 2014

Interdisciplinary Environmental Clinic students and faculty have won a major victory in the Missouri Court of Appeals, Eastern District, in an effort to block a proposed coal ash landfill. The court ruled 2-1 in favor of the IEC’s clients—the Labadie Environmental Organization and 11 individuals who live near Ameren’s Labadie power plant. The IEC’s clients are concerned about the proposed landfill’s location in the Missouri River flood plain and possible groundwater contamination.

The case challenges Franklin County’s 2011 adoption of zoning amendments to facilitate Ameren’s proposed coal ash landfill next to the Labadie plant. The court ruled that the trial judge improperly dismissed the IEC’s claim that Franklin County did not hold a valid public hearing prior to the county’s adoption of the zoning amendments.

Rather than remanding the case for the trial court to resolve that claim on the merits, however, the Appeals Court transferred the case to the Missouri Supreme Court “because of the general interest of the question posed by this case.” Each of the three judges on the panel wrote an opinion [view].

Maxine Lipeles, senior lecturer in law and IEC co-director, notes that the case has involved an all-out effort on behalf of the clinic while providing strong professional practice opportunities for students.

“Numerous law students and student consultants worked on this case—from preparing for the hearings, participating in the hearings, arguing the motion to dismiss, briefing the merits in the trial court, perfecting the appeal, preparing the record on appeal, and briefing the appeal,” Lipeles says.

“The IEC’s unique interdisciplinary structure, with law students working together with engineering, science, policy, medical, and public health students, makes the clinic well-suited to address such complex issues,” she adds.

Grants Support IEC’s Work

In related news, the IEC has received grants from several funding agencies to support the clinic’s efforts on behalf of its clients to force coal power plants to retire or add modern pollution control equipment.

The Energy Foundation awarded a $50,000 matching grant, and to date the clinic has raised $35,000 toward its match requirement—a $30,000 grant from the Mertz Gilmore Foundation and a $5,000 grant from the 2032 Trust, a Rockefeller Family Fund donor-advised fund.

The clinic also received $25,000 from the Changing Horizons Fund, another Rockefeller Family Fund donor-advised fund. The Changing Horizons Fund is particularly interested in the Mississippi River watershed. Three of Ameren Missouri’s coal-fired power plants discharge waste water into the Mississippi River, and the company’s Labadie Plant and Callaway Nuclear Plant discharge into the Missouri River, which flows into the Mississippi. Additionally, the coal plants store toxic coal ash in landfills along the rivers. The Changing Horizons Fund also awarded the IEC $30,000 last year.

“There are a lot of laws and regulations on the books that, if fully implemented, would force plants to upgrade or retire,” Lipeles explains. “In addition, some recently adopted requirements are still in the process of being implemented.”

One example of the latter is sulfur dioxide (SO2), an air pollutant that is particularly harmful to children, the elderly, and asthmatics. The U.S. Environmental Protection Agency (EPA) revised the national air quality standard for SO2 in 2010 upon determining that the old standard did not adequately protect public health, Lipeles says. Missouri contains two of the 29 areas across the nation that do not meet the new standard, and state officials are developing plans to reduce SO2 emissions here.

Opposing Counsel, Others Praise IEC Students’ Appearance before State Commission

Posted May 2014

It’s not every day that attorneys go out of their way to tell opposing counsel that they have done “a really nice job,” but that’s exactly what happened to three Interdisciplinary Environmental Clinic (IEC) students this spring.

Third-year law student Giles Howard and second-year law students Tamara Slater and Sydney Tonsfeldt were appearing before the Missouri Public Service Commission (PSC) at a hearing concerning Ameren Missouri’s request for a Certificate of Public Convenience and Necessity. For the past few years, the IEC has been representing the Sierra Club and the grassroots Labadie Environmental Organization. The groups are seeking to prevent Ameren Missouri from building a coal waste landfill at the company’s Labadie Power Plant in Franklin County, Missouri. The site is in the Missouri River flood plain.

Howard was especially committed to the case. The hearing had been scheduled for the fall, when he was originally an IEC student, but when it was moved to the spring he signed up for an advanced clinic so he could continue working on the case. When he had finished his opening statement on behalf of the clinic’s clients, including answering questions, several of the other parties’ attorneys told IEC Co-director and Senior Lecturer in Law Maxine Lipeles that Giles had been “great.” Giles was also quoted in a St. Louis Post-Dispatch story about the hearings.

Tonsfeldt worked with Howard on the case throughout the spring semester, while Slater worked on two matters involving factory farms before joining the Ameren case team. Liz Hubertz, lecturer in law and IEC attorney, also worked with Lipeles in supervising the students and representing the clients. At the close of the three-day hearing, one of the commissioners complimented Lipeles on the students’ performance. Similar praise came from one of Ameren Missouri’s lawyers. “It must be fun working with these students. They did a really nice job,” he said.

The Labadie Plant began operating in 1970 and obtained its original Certificate of Public Convenience and Necessity for the plant's construction in 1966. Last year, Ameren Missouri applied for a new certificate to extend its boundaries to include the area that would be used for the landfill. The hearing, which took place in Jefferson City, was before an administrative law judge as well as the four commissioners. Ameren Missouri, the PSC Staff, the PSC’s Office of Public Counsel, and the IEC’s clients were the parties.

“All of the students worked very hard to prepare for their witness cross-examinations and the opening statement, including 10 days of practice sessions,” Lipeles says. “They also thoroughly reviewed the extensive record and got up to speed on a case that commenced a year before their clinic participation.”

Working on the case in prior semesters were third-year law student Elizabeth Eschbach; Lauren Grady, JD '13; and Daniel Hinkle, JD '13.

“In directing the case, Liz and Maxine provided me with an opportunity I did not think I'd have for years: the chance to represent clients before a tribunal,” Howard says. “As clinic students, we were lucky to have instructors who were so dedicated not just to the clients’ needs but also to our growth as law students.”

After graduating, Howard will work at Goldstein and Price LC in St. Louis. Tonsfeldt will spend the summer between her second and third years of law school working at the United States Environmental Protection Agency, Region 5, in Chicago, while Slater has a fellowship at The Hague.

SCOTUS Sides with Interdisciplinary Environmental Clinic Amicus Brief in Clean Air Case

Posted April 2014

An amicus brief filed by Interdisciplinary Environmental Clinic (IEC) students and faculty in the Supreme Court of the United States (SCOTUS) was on the winning side of the court's recent ruling on the case EPA v. EME Homer City Generation LP. The case challenged the EPA’s Cross-State Air Pollution Rule (CSAPR), which seeks to protect the health of citizens of downwind states by placing limits on air pollution that crosses state lines. In a 6-2 decision, SCOTUS ruled in favor of the EPA, stating that the government did not violate the Clean Air Act when it implemented CSAPR. Electric power companies and several states and local governments had challenged the rule as overreaching.

IEC attorney Liz Hubertz filed the brief, with help from third-year law student Raya Rivera and fellow IEC clinic student Jennifer Elwell. It contained the arguments of 12 leading atmospheric scientists and air quality modeling experts from such leading universities as MIT, Stanford, Columbia, and Duke. EPA promulgated the CSAPR rule in 2011, and it was immediately challenged in federal court. In 2012, in a 2-1 decision, the DC Circuit held that EPA exceeded its authority under the Clean Air Act when EPA failed to heed what the opinion called “red lines” or constraints imposed by the statute itself, thereby leading to “overcontrol” of cross-state pollution in some upwind states.

Coverage of the April 29 ruling: • Wall Street Journal [view] • New York Times [view] • National Journal [view] • Law360 [view]

Interdisciplinary Environmental Clinic Files Amicus Brief in U.S. Supreme Court

Posted December 2013

Students and faculty in the Interdisciplinary Environmental Clinic (IEC) have filed an amicus brief on behalf of air pollution scientists in an important environmental case before the Supreme Court of the United States. The case, EPA v. EME Homer City Generation LP, involves a challenge to the EPA’s Cross-State Air Pollution Rule (CSAPR), which seeks to protect the health of citizens of downwind states by placing limits on air pollution that crosses state lines. Electric power companies and several states and local governments challenged the rule as overreaching.

The Supreme Court heard oral arguments in the case on December 10. The Court took the unusual step of extending oral argument by an additional 30 minutes, underscoring the significance and complexity of this case.

“The Supreme Court will have to decide whether EPA acted within its authority under the Clean Air Act when it required upwind states to control the amount of air pollution they send across the country,” says IEC attorney Liz Hubertz, who filed the brief in support of EPA’s rule. Added IEC scientist Ken Miller, who also worked on the brief: “Interstate air transport of pollutants is a thorny technical problem. The EPA rule, developed after careful consideration of alternatives and extensive air quality and transport modeling, is a reasonable scientific solution for apportioning and controlling cross-border pollution.”

Third-year law student Raya Rivera and fellow IEC clinic student Jennifer Elwell, a senior in the School of Engineering, contributed to the brief as well. The brief contains the arguments of 12 leading atmospheric scientists and air quality modeling experts from such leading universities as MIT, Stanford, Columbia, and Duke. The scientists explain why the approach EPA used to quantify upwind states’ significant contributions to air pollution in downwind states and determine upwind states’ emissions reduction obligations is a scientifically reasonable way to meet the interstate pollution requirements of the Clean Air Act. Many environmental and public health groups, such as the American Lung Association, as well as a number of cities and states support the EPA rule.

EPA promulgated the CSAPR rule in 2011, and it was immediately challenged in federal court. In 2012, in a 2-1 decision, the DC Circuit held that EPA exceeded its authority under the Clean Air Act when EPA failed to heed what the opinion called “red lines” or constraints imposed by the statute itself, thereby leading to “overcontrol” of cross-state pollution in some upwind states. Judge Rogers, in a passionate dissent, observed that these constraints made their first appearance in the appellate court, and that it would be difficult for any rule to meet the panel majority’s red lines.

Amici state in the brief: “The constraints imposed by the lower court’s opinion are not based on a realistic scientific understanding of the complexity of interstate air transport. EPA’s Transport Rule is a reasonable implementation of the good neighbor provision. Therefore the Rule should be allowed to stand.

MSNBC coverage of the case featured a reproduced "air pollution transport" map, which Hubertz used in the brief and cited Hubertz as saying: “The DC Circuit’s opinion was a simple answer to a complicated question. We think it’s all but impossible to comply with the DC Circuit's red lines and still take into account how air pollution actually works.”

Other coverage: • USA Today [view] • SCOTUSBlog [view]

IEC Co-director Lipeles Named Environmental Litigation Lawyer of the Year

Posted September 2013

Maxine Lipeles, senior lecturer in law and co-director of the Interdisciplinary Environmental Clinic, has been named Best Lawyers’ 2014 St. Louis Environmental Litigation Lawyer of the Year.

Best Lawyers, a peer-reviewed publication, surveys other lawyers to identify those deserving recognition. Because it is conferred by other legal professionals, the recognition is regarded as a significant honor.

The Interdisciplinary Environmental Clinic represents nonprofit groups, communities, and individuals who are pursuing legal action to protect the environment and community health, but who cannot afford the legal representation and scientific expertise this requires. Its teaching staff consists of three law and three technical faculty members. Law students work on interdisciplinary teams with students from across the campus, including engineering, medicine, public health, and environmental science.

The clinic handles cases in Missouri and Illinois involving air and water quality, energy, and sustainable development. Recently, the clinic filed a brief with the U.S. Supreme Court on behalf of air quality scientists to support the Environmental Protection Agency’s interstate air transport regulations.

Interdisciplinary Environmental Clinic Receives McKnight Foundation Grant

Posted June 2013

The law school’s Interdisciplinary Environmental Clinic (IEC) has received a two-year, $278,000 grant from the Minneapolis–based McKnight Foundation to support the clinic's work on a variety of water-quality projects affecting the Mississippi River and water in Missouri and Illinois. The latest grant brings the total amount of McKnight Foundation support for the clinic to almost $1.3 million.

Established in 2000, the IEC has a dual emphasis on experiential learning and community service. It represents nonprofit groups, communities, and individuals who are pursuing legal action to protect the environment and community health, but who cannot afford the legal representation and scientific expertise this requires. One of seven client-based law clinics, the IEC gives Washington University law students the opportunity to serve, with law school faculty, as members of interdisciplinary professional teams representing clients in real cases. The clinic is part of the law school's award-winning Clinical Education Program, which is consistently ranked among the nation’s premier programs, offering 16 distinct law clinics and externships.

“We have been very active in pursuing wetlands and floodplains protection and in trying to get Missouri to bring its water-quality standards into compliance with the federal Clean Water Act,” says Liz Hubertz, lecturer in law and IEC clinic attorney. “Our students have front-line responsibility for the work—appearing in court and administrative proceedings, conducting research, and commenting on regulations.”

The IEC has received grants from the McKnight Foundation since the early 2000s. The Foundation supports the IEC’s participation in the Mississippi River Collaborative of a dozen grantees working on common water quality issues along the length of the Mississippi River, as well as additional water quality work in the region.

A family-based organization, the McKnight Foundation has granted more than $1.9 billion over the past 60 years to build and maintain vibrant communities, enrich people’s lives through the arts, encourage protection of the natural environment, and promote research in selected fields.

IEC Clinic Attorney Hubertz Receives Missouri Lawyers Weekly's Top Settlement Award

Missouri Lawyers Weekly recognized Liz Hubertz, lecturer in law and clinic attorney in the Interdisciplinary Environmental Clinic (IEC), with a “Top Settlement Award” at the Missouri Lawyers Weekly Awards Luncheon Jan. 25.

Hubertz, along with Interdisciplinary Environmental Clinic (IEC) students, represented the Missouri Coalition for the Environment in a federal lawsuit against the Metropolitan St. Louis Sewer District (MSD). IEC Engineering and Science Director Beth Martin, also assisted by IEC students, provided technical consulting services during the litigation. The suit alleged that the district had discharged more than 500 million gallons of raw sewage into St. Louis-area waterways between 2000 and 2006, a violation of the federal Clean Water Act.

The consent decree, which follows three years of negotiation, requires MSD to pay a $1.2 million civic penalty to the federal government, spend $4.7 billion over the next 23 years to build infrastructure and upgrade operations to comply with the Clean Water Act, and complete specific green infrastructure projects in North St. Louis. The St. Louis Post-Dispatch called it “the largest public works project in St. Louis’ history.”

Established in 2000, the IEC is an interdisciplinary venture with a dual emphasis on experiential learning and community service. It represents nonprofit groups, communities, and individuals who are pursuing legal action to protect the environment and community health but who cannot afford the legal representation and scientific expertise this requires.

Also at the awards ceremony, Dean Kent Syverud was honored as “Lawyer of the Year” for 2012, and two law alumni, Winston Calvert, JD ’05, of Armstrong Teasdale LLP, and Ken Vuylsteke, JD ’80, of Fox & Vuylsteke LLP, were recognized as “Legal Champions.” Click here to view related news item.

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