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PFAS: Illinois’ Chance to Confront “Forever Chemicals”

What do pizza boxes, non-stick pans, make-up, firefighting foam, water-repelling clothing, and fast-food packaging all have in common? A simple, four-letter word: PFAS.[1] Per- and polyfluoroalkyl substances (PFAS) have been around for decades, appear in a vast variety of industries around the globe, and pose a substantial risk to human health and the environment.[2] Worst of all, they rarely degrade.[3] For this reason, they have been dubbed by the scientific community “forever chemicals.”[4]

PFAS is an umbrella term for a group of thousands of man-made chemicals characterized by their ability to repel water, grease, dirt, and oil.[5] PFAS are chains of one of the strongest chemical bonds in nature, which do not easily break down under natural conditions.[6] This has far reaching implications that are not readily apparent. When the rest of a product that contains PFAS breaks down, you are left with tiny remnants of forever chemicals. But where do they go and what happens to them?

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Not Just Keystone XL: The Indigenous Fight for Environmental Justice

Indigenous groups have been the stewards of the American terrain for generations.  Yet, these communities are in a constant battle not only to protect their own sacred land from ecological harm but also to advocate for a stable climate.[1] The continued exploitation of indigenous land by large corporations and the U.S. government is a reminder that colonialism is still alive and well in today’s governance.[2]  The loss of critical habitat for many species that indigenous people rely on leads to not only the loss of necessary resources for survival but also sacred cultural practices. [3] Treaties between the U.S. government and indigenous groups are intended to guarantee continued tribal access to species as their habitats continue to change, however,  these treaties are often not honored by the U.S. government.[4]

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California Governor’s Executive Order Pushes Phase-Out of Gas-Powered Cars by 2035

On September 23, California Governor Gavin Newsom issued an executive order (“Order”) directing that “all new cars and passenger trucks sold in California be zero-emission vehicles by 2035.”[1] The order’s public announcement emphasizes concern over smog and toxic diesel emissions and notes that half of California’s carbon pollution originates from the transportation sector.[2] The Order prioritizes deploying zero emissions technologies to “reduce both greenhouse gas emissions and toxic air pollutants that disproportionately burden our disadvantaged communities of color.”[3]

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U.S. Scheduled to Exit Paris Climate Agreement on November 4

Amid raging wildfires, heavy rains, and tornadoes— all of which  have been linked to climate change—the United States is set to exit the Paris Agreement on November 4, one day after the presidential election.[1] President Trump, who has said that the global agreement to confront catastrophic climate change was a “total disaster” for the United States, formally issued the required one-year notice of withdrawal last November.[2] Former Vice President Joe Biden has stated that he would  re-enter the U.S. into the Paris agreement if he wins the 2020 election.[3]

The 2015 Paris Agreement seeks to limit the “global temperature rise this century well below 2 degrees Celsius above pre-industrial levels,” and ideally less than 1.5 degrees Celsius.[4] Nations set their own goals for reducing greenhouse gas emissions through nationally determined contributions (NDCs).[5]

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Bureau of Land Management Reduces Royalty Rates for Onshore Drilling Operators

In April, the U.S. Department of Interior’s Bureau of Land Management (“BLM”) issued guidance reducing the royalty rate for energy companies that drill for oil and gas on public land.[1] The announcement came as analysts began to understand the dire financial consequences of the COVID-19 pandemic on the oil and gas industry. BLM’s guidance aimed to provide a lifeline to the already struggling industry.[2]

The Mine Leasing Act of 1920 (“MLA”) governs the development of oil and gas on federal land.[3]  It authorizes the Secretary of the Interior to hold auctions for the subsurface rights of federal lands that contain fossil fuel deposits.[4] Under this arrangement, an energy company submits a bid for the lease, and, if successful, pays the federal government rent and royalties for its use.[5]

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Legalized Marijuana and Energy Use: A Primer

Marijuana use, whether for recreational or medicinal purposes, is growing. Because some states prohibit growing hemp plants outdoors, much of the production is indoors—an energy-intensive operation that requires grow lights, air conditioning, and dehumidification.[1]

Cannabis cultivation centers (where the plants are grown) have been likened to data centers, which are “50 to 200 times more energy-intense than a typical office building.”[2] With more states expected to legalize recreational cannabis in the next few years (medical use is currently legal in 33 states,[3] and adult recreational cannabis use is currently legal in 11 states[4]), demand for marijuana will continue to grow, bringing with it strain on energy resources.

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ComEd corruption probe: facing legal scrutiny on all sides

Commonwealth Edison Company (“ComEd”),  Illinois’ largest electric utility provider, finds itself mired in lawsuits after federal prosecutors filed criminal charges against the Company earlier this summer.

In July, federal prosecutors entered into a deferred prosecution agreement (“DPA”) with ComEd that implicated a range of actors—from ComEd executives to long-time Illinois House Speaker Michael Madigan—in a years-long bribery scheme.[1] Federal prosecutors, state regulators, and ratepayers seek to hold ComEd accountable for its conduct.

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Environmental Deregulatory Landscape in 2019

President Trump believes that “an ever-growing maze of regulations, rules, restrictions [sic] has cost our country trillions and trillions of dollars, millions of jobs, countless American factories, and devastated many industries.”[1] He campaigned on the promise to eliminate the Environmental Protection Agency (“EPA”) “in almost every form,” leaving “only tidbits” intact.[2] According to the White House, “President Trump has reduced a historic number of burdensome and unnecessary regulations and stopped the massive growth of new regulations.”[3] The Administration’s environmental deregulatory agenda includes 85 rollbacks in air pollution and emissions standards, drilling and extracting, infrastructure and planning, wildlife protection, toxic substances and safety, and water pollution.[4] In the EPA’s FY 2020 Budget in Brief, the stated mission of the EPA is to “protect human health and the environment,” and according to the EPA, “we can all agree that we want a clean, healthy environment that supports a thriving economy.”[5] The report went on to say, “[e]nvironmental stewardship that supports a growing economy is essential to the American way of life and key to economic success and competitiveness.”[6]

The Administration’s most recent deregulatory success came with abandoning the Obama-era definition of what qualifies as “waters of the United States,” which provided enhanced protections for wetlands and smaller waterways. Under the new Rule, only wetlands “that are adjacent to a major body of water, or ones that are connected to a major waterway by surface water” will be federally protected.[7] The EPA gave four reasons for repealing the 2015 Clean Water Rule: (1) the Rule exceeded the agencies implementing authority based on Justice Kennedy’s significant nexus test in Rapanos;[8] (2) the Rule failed to adequately consider that it is the responsibility and right of the States to protect and “plan the development and use . . . of land and water resources’”; (3) to avoid future unconstitutional land encroachments by the federal government; and (4) the “distance-based limitations” suffer from “procedural errors” and lack “adequate record support.”[9] At a press hearing for the repeal, EPA Administrator, Andrew Wheeler, said that the EPA is “delivering on the president’s regulatory reform agenda,” and the agency is working on 45 more deregulatory actions.[10]

Critics of the Administration’s deregulatory agenda in the EPA have come just short of classifying it as “regulatory capture.”[11] Regulatory capture occurs when agency regulation departs from the public interest, and is directed towards the regulated industry. Although falling short of regulatory capture, critics believe the Administration’s actions show “an ambitious, intensifying movement to cripple the EPA’s capacity to confront polluting industries and promote public and environmental health.”[12] They further contend that the consequences of this deregulatory agenda “will likely fall hardest on vulnerable social groups, such as low-income communities, farmworkers, and first responders.”[13] On the other hand, proponents of the Administrations regulatory reform agenda are celebrating how the “Environmental Protection Agency managed to exceed its deregulatory goal” of removing two rules for every one they proposed.[14]

In addition to deregulation, the EPA has proposed to eliminate 41 current EPA programs and sub-programs while drastically cutting its budget in 2020. The EPA’s FY 2020 Budget in Brief requested $6.068 billion, which “represents a $2.76 billion, or 31 percent reduction from the Agency’s FY 2019 Annualized Continuing Resolution.”[15] The EPA contends that this budget is sufficient to support its “highest priorities” and fulfill its “critical mission for the American people.”[16] Among the programs to be cut are: Environmental Education, Pollution Prevention, Reducing Lead in Drinking Water, Regional Science and Technology and Water Quality Research and Support Grants.[17] While it is unlikely that the proposed budget cuts will be approved by Congress, the FY2020 Budget in Brief signifies a continued departure from the Obama-era expansion of the EPA.

With 85 environmental regulatory rollbacks, a proposed 31 percent reduction in funds, and the elimination of “funding for fourteen voluntary climate-related partnership programs,” President Trump is delivering on his campaign promise to eliminate the EPA “in almost every form.”[18] While the Administration continues to deliver on its promise, according to a 2019 Gallup Poll, “[b]y the widest margin since 2000, more Americans believe environmental protection should take precedence over economic growth when the two goals conflict.”[19] Currently, sixty-five percent of Americans, Republican and Democrat, believe that the environment should take priority over “a thriving economy.”[20]

While President Trump has not managed to eliminate the EPA “in every form,” he has managed to erode many of the environmental law principles which guided the agency for many years. Many States are pushing back against the Administration’s deregulatory agenda and countless lawsuits challenging their actions have been filed.

*Featured Image: 84 Environmental Rules Being Rolled Back Under Trump, The New York Times (Sept. 12, 2019).

[1] President Donald J. Trump’s Historic Deregulatory Actions are Benefiting American Families, Workers, and Businesses The White House, (last visited Sep 15, 2019).

[2] The Fox News GOP debate transcript, annotated The Washington Post, (last visited Sep 15, 2019).

[3] The Office of White House, supra, n. 1.

[4] Nadja Popovich, Livia Albeck-Ripka, and Kendra Pierre-Louis, 84 Environmental Rules Being Rolled Back Under Trump, The New York Times (Sept. 12, 2019), (last visited Sep 15, 2019) (A New York Times analysis, based on research from Harvard Law School and Columbia Law School).

[5] FY 2020 EPA Budget in Brief, p. 1 (March 2019),

[6] Id.

[7] Bill Chappell, EPA Makes Rollback Of Clean Water Rules Official, Repealing 2015 Protections, NPR, (last visited Sep 15, 2019).

[8] Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).

[9] Definition of “Waters of the United States” – Recodification of Pre-Existing Rules (Pre-Publication Version) EPA (Sept. 12, 2019), (last visited Sep 15, 2019) (quoting 33 U.S.C. 1251(b)).

[10] Id.

[11] Lindsey Dillon et al., the “EPA Under Siege” Writing Group, The Environmental Protection Agency in the Early Trump Administration: Prelude to Regulatory Capture, NCBI, S90 (2018),

[12] Id.

[13] Id.

[14]EPA exceeds 2-for-1 deregulation goal set by Trump administration, Federal News Network, (Sept. 3, 2019), (last visited Sept. 23, 2019).

[15] FY 2020, supra, n. 5 at 1-2.

[16] Id. at 2.

[17] Id. at 89-93.

[18] Id. at 94.

[19] Lydia Saad, Preference for Environment Over Economy Largest Since 2000, Gallup (April 4, 2019) (“Results for this Gallup poll are based on telephone interviews conducted March 1-10, 2019, with a random sample of 1,039 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. For results based on the total sample of national adults, the margin of sampling error is ±4 percentage points at the 95% confidence level”) (last visited September 18, 2019).

[20] See FY2020, supra, n. 5.

[BLOG, Apr. 5, 2016] A Change of Balance: Scalia’s Legacy and his Successor’s Mark by Phil Musolf

A Loss for Court and Country

On February 13, 2016, Justice Antonin Scalia passed away from natural causes.  Political rhetoric and American society polarized Justice Scalia’s opinions in life.  While he leaves a charged legacy, this Justice leaves a great void within the Supreme Court of the United States.

Justice Scalia was famously known for his judicial wit, lively persona, and a strong constitutional judicial philosophy.  Scalia was never known as a consensus builder on the court.  He was more well-known for his colorful dissents than his majority opinions.  Some of his more famous lines involving certain opposing arguments were: “pure applesauce.”[1]  A famous oral line of questioning occurred during the arguments for the Patient Protection and Affordable Health Care Act.  Scalia suggested an attorney’s logic might grant the government the power to “make people buy broccoli.”[2]  Scalia used colorful language and a forward, almost silly style to shed light on important logical and legal arguments.  In many ways, his use of language encouraged engagement with the American public, and held the attention of many young law students.

Scalia’s Environmental History

Many environmental proponents claimed Scalia was no friend of environmentally conscious judicial action (or inaction).  Scalia staunchly attacked and criticized the EPA’s regulations and their ways of applying statutory laws.  While suggesting Scalia was not a great friend to the environment might be generally accurate, it fails to give credence to Scalia’s judicial philosophy and analysis of each case.  His application of statutory law and constitutional principles during his time on the court prevented overreach and misuse of agency authority.  At least that’s what Scalia might say were he alive today.

At the beginning of his tenure some of the first rulings interpreted statutes to assist environmentally protective laws.  A 2001 opinion of his found that the Clean Air Act did not require the EPA to consider costs of implementation when creating the guidelines for the national ambient air quality standards.  Justice Scalia wrote that a section of the Clean Air Act, “unambiguously bars cost considerations from the NAAQS-setting process…”[3]  This case allowed the US EPA to design air pollutant controls upon health measures, rather than economic ones.  The case was found to be a tremendous victory for environmentalists.  In 1994, Scalia wrote the court opinion preventing the City of Chicago from dumping incinerator ash into landfills not permitted for handling hazardous wastes.[4]  Scalia analyzed a comprehensive hazardous waste statute, finding that when Chicago burned residential waste, the ash created by the city was a new hazardous waste.  The newly created hazardous waste was then subject to statutory requirements including disposal, reporting, and other types of extensive regulations.  However, these outcomes were not typical of Justice Scalia.

He was better known for interpreting environmental and energy issues in a way which hurt environmental protections and limited the EPA’s discretion.  In one of his first important environmental cases, an issue that needed to be addressed was one of public standing to sue.  In this 1992 decision, Justice Scalia limited the ability for individuals to sue administrative officials under the Endangered Species Act.  Essentially, Scalia suggested that a possible future threat of extinction in species is not imminent enough to grant an injury and thus standing.[5]  Justice Scalia took part in a somewhat split decision when interpreting the Clean Water Act.  The 2006 case attempted to reinterpret how the US EPA defined waterways within the US.  Justice Scalia, with four other justices, released an opinion which shrunk the definition. His opinion wanted to define waterways as “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features” rather than all interconnected bodies of water.[6]  While this case was a plurality decision leaving much open for debate, the decision written by Scalia created a reassessment about how the Clean Water Act protected water resources.

Justice Scalia also opposed the way the EPA enforced the Clean Air Act.  Scalia often believed that the EPA misinterpreted the authority of that act.  In Massachusetts v. EPA, the Supreme Court ruled that the EPA could regulate greenhouse gas emissions for motor vehicles.[7]  This case appears to be one of the biggest cases in a generation and this gives the EPA a great power to regulate carbon emissions.  Scalia joined the dissent.  The dissent, however, appears to go against a previously supported case, Chevron v. Natural resources Defense Council, IncChevron gave extensive agency deference when there was vague statutory guidance.[8]  Despite the dissent, the Obama administration took notice of the decision and is attempting to regulate greenhouse gas emissions for stationary sources.  This action led to another case involving the Air Toxics rule.  In Michigan v. EPA, Justice Scalia wrote the decision which decided that costs must be considered when the EPA is regulating certain regulated facilities under the Clean Air Act.[9]  This case seemed to be in contention with a prior decision, Whitman.  However, Justice Scalia used the statutory framework in that section of the Clean Air Act to attempt to avoid the inconsistency of Whitman.  Despite some obvious opposition, Scalia used his gifts of reason, logic, and writing to somewhat avoid that inconsistency.  In a sense, Justice Scalia continued his legacy of being strict in interpreting judicial statutes within the environmental realm.

Future for Successor

As always, the Supreme Court has very serious issues to consider in the future.  Many environmental interpretations are split very closely, and the successor to Justice Scalia will surely affect nearly all of the outcomes.  The Clean Power Plan is currently in litigation, and while a decision may not be ultimately decided for another year, a new appointee will be on the court to decide.  The Supreme Court voted 5-4 in favor of issuing a stay against EPA regulations.  That was unprecedented for the type of stay and that type of action is only allowed when there are serious constitutional concerns.  With a loss of Justice Scalia, the courts replacement may certainly hold the verdict in their hands.

Another important recent Supreme Court case addressed the longstanding Chevron Doctrine.  In King v. Burwell, the Supreme Court prevented the IRS agency action when applying a new part of the Affordable Care Act.[10]  The case ultimately suggested that the Chevron Doctrine may not be ironclad. The case stated that the doctrine does not apply when there are very important reasons to avoid agency interpretation of the statute.  Both of these two looming Supreme Court cases involve agency action, and serious environmental concerns.  Any Supreme Court nominee will surely affect the outcome of the court, our government, and the health of the planet.

At this time, President Obama has nominated Chief Judge Merrick B. Garland of the D.C. circuit court to fill Justice Scalia’s vacant seat.  The status of the political climate suggests this nomination is no guarantee.  While there are also no guarantees of how a justice will act once they are on the court, it does appear that Chief Judge Garland may support agency discretion.  He has sided with governmental agencies in many of his rulings.  In a third of the Chief Justices dissents, he has argued that agencies should have lenient discretion. [11]  This benchmark bodes well for the future of the EPA and subsequent presidential administrations.  The more leniency an agency has, the more discretion presidents have in fulfilling their agenda.  If Chief Justice Garland becomes appointed, it appears he would allow agencies and their presidential boss the discretion to do their jobs.  That is, of course, their jobs as they see fit.


[1] King v. Burwell, 135 S.Ct. 2480, at 2501 (2015).

[2] “National federation of Independent Business v. Sebelius.”  Oyez Chicago-Kent College of Law at Illinois Tech, n.d. Apr 4, 2016.

[3] Whitman v. American Trucking Associations, Inc., 531 U.S. 457, at 471 (2001).

[4] City of Chicago v. Environmental Defense Fund, 114 S.Ct. 1588 (1994).

[5] Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992).

[6] Rapanos v. US, 517 U.S. 715, at 715 (2006).

[7] Massachusetts v. EPA, 549 U.S. 497 (2007).

[8] Chevron v. Natural resources Defense Council, Inc., 104 S.Ct. 2778 (1984).

[9] Michigan v. EPA, 135 S. Ct. 2699 (2015).

[10] King v. Burwell, 135 S.Ct. 2480 (2015).

[11] Page, Samantha, Think Progress,  April 4, 2016.

[BLOG, Feb. 24, 2016] The Clean Power Plan: Staying up to date, with the Stay by Phil Musolf

Main Headline

The Paris climate talks have come and gone. Real progress resulted in an agreement which might hold global temperatures below the catastrophic cliff which would lead climate change into apocalypse.[1] However, the U.S. Environmental Protection Agency (EPA) already began the process to significantly reduce carbon emissions. The international meeting briefly interrupted agency action which might drastically affect carbon emissions coming from U.S. entities.

In 2007, the Supreme Court created legal reasoning which suggested the EPA may regulate greenhouse gas emissions under the Clean Air Act. In Massachusetts v. EPA, the Supreme Court found that the EPA has the power to regulate greenhouse gas emissions in vehicles, but only if those emissions were found to contribute to climate change.[2] The Obama Administration took notice of this decision, and decided during its tenure to expand regulation of greenhouse gases. Instead of vehicles, the EPA is now attempting to regulate stationary sources with Massachusetts v. EPA as legal support.

In June, 2014, the Obama Administration announced the Clean Power Plan (CPP) proposal. Per statute, the proposal was open for public comment period. The comment period was extended after receiving extensive interest from interested parties and the public. The federal Clean Power Plan was proposed later on August 3, 2015. This updated proposal included changes allowing greater flexibility and it removed certain required programs which had dangerous constitutional questions attached. The federal register published the Clean Power Plan final rule on October 23, 2015.

Major Components

The Clean Power Plan attempts to address the whole fleet of power generation, rather than each individual source. The Clean Power Plan is currently built around several main “building blocks” to address carbon emissions. These include:

  1. Increasing efficiency of fossil fuel generation.
  2. Shifting fleets from higher emitting coal to lower emitting natural gas.
  3. Converting to zero-emitting renewable energy.   (This section changed to allow state programs to include under construction nuclear & upgradeable nuclear plants)

The CPP includes proposal of major sub-parts. These sections include strengthening for environmental justice community concerns so that changes in emission locations do not impact the most vulnerable communities. There is also a Clean Energy Incentive Program (CEIP). The voluntary program incentivizes states to update energy efficiency in low-income communities. The program also incentivizes investment in renewable energy programs. These programs gain benefits from 2020-2021. The CEIP was originally a main building block in the original Clean Power Plan, but possible legal concerns removed the program as a mandatory requirement. Lastly, the Clean Power Plan intends to start cap-and-trade programs between facilities and states. This program allows generated pollution credits to be traded to increase flexibility. The program incentivizes cleaner facilities and discourages carbon generating facilities.

Current Litigation

Current litigation began in October, 2015 from 24 states filing against the EPA (this number has risen). The complaint argues that when a source is regulated under Section 112 of the Clean Air Act (CAA), that same source may not also be regulated under Section 111(d). Ultimately, the states and utilities opposing the plan are claiming that it is overstepping the CAA because it regulates not only sources but owners, operators, and the entire electric grid. The EPA suggests that House and Senate language used in the 1990 Amendment is merely to avoid duplicating regulation of pollutants, not duplicating regulation of sources.[3]

Opposing states and utilities have attempted to prohibit the EPA from moving forward with the CPP. These states filed an emergency stay of the Clean Power Plan attempting to delay the initiation of the EPA rules until after judicial rulings. This emergency stay filed by the states has been subsequently denied.

However, several days after on January 27th, 2016, a conglomeration of utilities filed an application of emergency stay. The utilities are claiming there will be irreparable harm if final agency action is not delayed. The Utilities suggest immediate investment, research, and resources will be directed towards developing the technologies which are required to meet the new EPA standards. The Utilities are claiming that the EPA does not have relevant expertise in designing electrical grid requirements. Expertise is required for agencies to issue mandates on the industry.[4] The EPA has new legal support in a recent Supreme Court decision. In FERC v. Electricity Power Supply Association, the Supreme Court recently stated that a federal agency could deal with electricity rates as well as “any rule or practice ‘affecting’ such rates.”[5] The EPA hoped that the Supreme Court would have found similar logic for the EPA to apply green-house gas emission rules.

On February 9th, 2016, the Supreme Court ruled in favor of the stay. The order said very little in regards to merits of the case. The order states merely that the vote was 5-4 with Breyer, Sotomayor, Kagan, and Ginsburg in the dissent. The ruling suggests some serious concerns with the EPA rules as stays are typically awarded only when there is a high chance to win on the merits of the case. There will be very little time for utilities and energy companies to prepare for upgrades, so some power companies are already preparing for reducing emissions.[6]

Currently, the EPA has a deadline of September, 2016 for states. This deadline requires states to file an initial proposal or request an extension. An extension grants an additional two years to develop a complete plan (September, 2018). Initial reductions of compliance do not begin until January, 2022, but if states participate in the Clean Energy Incentive Program they can receive benefits as early as 2020 continuing through 2021. Clean Power Plan proponents believe that these are reasonable deadlines for states and the industry to meet. Utilities have suggested that these types of changes will take between three to seventeen years to accomplish.[7]

The Court is prioritizing this case, and has pushed for a rapid timetable. The Court scheduled oral arguments for June 2nd.[8] This will likely allow the decision by the Court to be published before the September deadline.


[1] Davenport, Coral, The New York Times, (accessed February 4, 2016)

[2] Massachusetts v. EPA, 549 US 497 (2007)

[3]Gilmer, Ellen M., E&E Reporer, (accessed, February 4, 2016)

[4] Basin Electric Power Cooperative v. US EPA, Application for Immediate Stay of Final Agency Action, 11-12, January 27, 2016.; King v. Burwell, 135 S.Ct.2480 (2015)

[5] FERC v. Electric Power Supply Association, No. 14-840, Slip Op at 1 (US, January 25, 2016),

[6] The Detroit News,, February 12, 2016

[7] Basin Electric Power Cooperative v. US EPA, Application for Immediate Stay of Final Agency Action, 12, January 27, 2016.

[8] Wolf, Richard, USA Today,

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