By: Joseph Garza
From Rust Belt to Green Belt
Illinois lawmakers’ proposal to transform Chicago into a powerhouse of offshore wind energy production faces a critical legal challenge in the public trust doctrine. This proposal marks an important step for Illinois as it transitions from fossil fuels towards a future based in renewables. HB4543, dubbed the Rust Belt to Green Belt Pilot Program Act (the Act), aims to bring offshore wind to Chicago in the most equitable way possible. The Act plans to focus new jobs created by this development to the south side of the city, whose workforce had once been heavily involved in the now-abandoned steel industry. This goal is especially important in a city dealing with a troubling past devoid of environmental justice for marginalized communities. With the Act going through its public participation stage, it is important to address one of its largest areas of opposition: the public trust doctrine.
The Illinois Public Trust Doctrine
The public trust doctrine governs the use of Lake Michigan in Illinois, stating that the State of Illinois holds the water and bed of lake Michigan in trust for the benefit and use of Illinois citizens. As the beneficiary of this trust, the public has the right to seek the reversal of any State action inconsistent with this doctrine. Over the past century, courts have repeatedly grappled with State conveyance of Lake Michigan land, particularly with whether such conveyances violate the public trust doctrine.
Recently, in Lake Michigan Federation v. U.S. Army Corps of Engineers, the conveyance of Lake Michigan land to Loyola University was overturned because the land would primarily be used for private gain, thus hindering the public’s enjoyment of that portion of the lake and relinquishing state power over the land. Conveyances that have been upheld—including conveyances for a public football stadium, a public roadway, a public water treatment plant, and public exposition facilities—typically were not conveyed solely for private benefit and did not represent attempts by the State to relinquish its control of the conveyed land.
Renewable Energy Credits
The argument for why the Act runs contrary to the public trust doctrine is that it will allow the State to grant federally funded tax credits to private developers. These renewable energy credits (RECs) are often used to offset the cost of renewable energy development. However, this concern fails to examine the substantial process for granting RECs. For example, developers cannot receive RECs for offshore wind projects unless they satisfy a set of factors. One such factor is showing that the project is compatible with ecological and historical uses of Lake Michigan. The Illinois Power Agency will not issue RECs if a developer fails to satisfy enough factors listed by the Act.
Specifically, the Illinois Power Agency grades REC applicants on how well they satisfy the factors listed in the Act, with a minimum score of 75/100 being the threshold for awarding an REC contract. Other factors in this analysis include the price of project development (with a lower price receiving a higher grade), existence of a plan to mitigate environmental impacts of development, a showing of equitable and inclusive development, and the financial ability to fund the project. With projects of this scale, developers are incentivized to minimize costs through attaining and later selling RECs, which are significantly easier to earn when showing that a proposed project is compatible with other uses of the Lake. Along with this REC contract application process, offshore wind projects are also compatible with the public trust doctrine because the permitting process considers other uses of Lake Michigan.
The Permitting Process for Offshore Wind
The permitting process limits plans for offshore wind development that do not consider other uses of the land and water. The Illinois Department of Natural Resources (the Department) has the authority to offer leases for offshore wind projects. The Department is responsible for developing a siting plan of the most feasible Lake areas for offshore wind development. In doing so, the Department “shall take into consideration existing environmental, marine, public infrastructure, transportation, and security uses and factors, and may also consider other factors it identifies as appropriate.” Once that list of feasible sites is created, the Department will be tasked with leasing out land in the name of the State by issuing assessment permits to private entities who wish to develop the land for offshore windmills.
Permit applicants must show that the construction and operation of wind energy facilities would not be inconsistent with public trust doctrine. In issuing permits, the Department has the authority to impose any additional terms or conditions that it deems necessary to protecting the rights of the State, the public, lessees, and users of public trust waters and lands of Lake Michigan onto any assessment permit. The public trust doctrine is heavily taken into account in the permitting process for offshore wind projects in Lake Michigan. The permitting process and construction of the Act suggest that the push toward an Illinois powered by clean energy can be compatible with other traditional uses of Lake Michigan. As long as the Act continues consideration of the public trust doctrine, it is likely survive future judicial challenges.
How You Can Get Involved
Currently, the Act awaits a third reading in the Illinois State Legislature. Following this, both houses will consider any amendments before voting on the Act. Once the Act passes both houses the Governor can then sign HB4543 into law. You can show your support for the Act by contacting your state legislators to communicate that support directly. To find your elected officials, visit the Illinois State Board of Elections’ Website.
 Press Release, JB Pritzker, Governor of Illinois, Gov. Pritzker Signs Transformative Legislation Establishing Illinois as a National Leader on Climate Action (Sept. 15, 2021), https://www.illinois.gov/news/press-release.23893.html.
 Michael Hawthorne, Citing Environmental Racism, Southeast Side Activists File Civil Rights Complaint Against Chicago: ‘We’ve Been a Dumping Ground For Too Many Years’, Chicago Trib., Aug. 13, 2020, https://www.chicagotribune.com/news/environment/ct-chicago-environmental-justice-civil-rights-complaint-20200813-lgbjqy6hmvbmrhbf7zpsaec56y-story.html
 Brett Chase, Lake Michigan Wind Farm Touted for Southeast Side, Chicago Sun Times, Sept. 8, 2022, https://chicago.suntimes.com/2022/9/8/23342651/lake-michigan-wind-farm-southeast-side-turbines
 Ill. Dept. of Nat. Res., Lake Michigan Offshore Wind Advisory Report, 7, (2012), https://www2.illinois.gov/dnr/Documents/LMOWEFinalReport62012.pdf.
 Id. at 7-8, (quoting 742 F.Supp. 441, 455 (N.D. Ill. 1990)).
 Chase, supra note 3.
 Rust Belt to Green Belt Pilot Program Act, HB 4543, 102nd Gen. Assemb., Reg. Sess. (Ill. 2022),https://www.ilga.gov/legislation/102/HB/10200HB4543lv.htm.
 Id.; Commonwealth Eddison, Solar Incentives & Credits, (2022), https://www.comed.com/SmartEnergy/MyGreenPowerConnection/Pages/SolarIncentivesCredits.aspx.
 Supra note 10.
 20 Ill. Comp. Stat. 896/15 (2013).
 20 Ill. Comp. Stat. 896/25 (2013).
 20 Ill. Comp. Stat. 896/30 (2013).
 Ill. Gen. Assemb., Bill Status of HB4543, https://www.ilga.gov/legislation/billstatus.asp?DocNum=4543&GAID=16&GA=102&DocTypeID=HB&LegID=138005&SessionID=110; 98bill_law.pdf.