What Schoolhouse Rock Didn’t Tell You About Lawmaking

[Update 4.16.2021: Illinois regulators just finalized coal ash rules that make significant strides to rectify coal’s toxic footprint in Illinois. Read below to learn how Earthjustice attorneys worked with regulators and activists to ensure these coal ash safeguards be as protective and comprehensive as federal requirements. In fact, these new protections went above and beyond federal requirements.]

A few years ago, after relentless advocacy by community groups and legal work by Earthjustice, the state of Illinois passed a landmark law to clean up coal ash, a toxic byproduct of burning coal. The new law was a turning point in the decades-long fight to force coal plants to clean up their waste, particularly in Illinois, a state that’s littered with many leaking coal ash sites.

Illinoisians — or is it Illinoians? — rejoiced. But the work was far from over. Though those who remember the iconic Schoolhouse Rock video “I’m Just a Bill” might think otherwise, there’s a lot that happens after a bill becomes a law. That work, which basically makes or breaks a law’s effectiveness on the ground, is just beginning for Illinois’ coal ash law.

Earthjustice, which has spent decades fighting to clean up toxic coal ash nationwide, will be there every step of the way — to ensure that those in Illinois suffering from coal ash pollution finally get some justice.

In the Schoolhouse Rock version of lawmaking, a “sad little scrap of paper” called Bill travels through Capitol Hill to try and get passed by the House and the Senate. Once signed by the president, Bill officially becomes a law. It’s not an easy process, as Bill and his red-haired friend lament, but once signed, all seems good and final as brightly colored confetti drops from above the two friends.

However, the real version of lawmaking is slightly less colorful, as least in the literal sense.

After legislators sign a bill into law, regulators bring the spirit of the law to life by writing specific rules and guidelines under the law in what’s called the administrative law process. Legislators assign this task to regulatory agencies because they recognize that regulators — not politicians — are typically the ones with the technical and scientific expertise to create the best rules. Take the Clean Air Act, for example. When signed in 1970, the law basically said we should keep the air clean. But it was EPA regulators who determined what that meant in practice by creating specific rules, such as limits on air pollutants like nitrogen oxides and particulate matter, that would help clean the air.

Regulators begin the administrative law process by taking a bunch of input from all sides, including those who want to strengthen the law AND who want to weaken it. This input can come from anyone from individuals and community organizations to industry groups. The regulators also research the latest scientific data related to the law, such as what scientists say about the impacts of coal ash on the safety of our groundwater. Armed with this information, regulators then propose rules to explain how they will put the law into effect and what entities like individuals or companies must do to comply with it.

What’s Earthjustice’s role in administrative law?
Earthjustice gets involved in administrative law fights for one simple reason, as explained by Earthjustice attorney Jenny Cassel: “Crappy laws = crappy rules = crappy permits.”

Cassel’s point is that, for a law to be truly effective, you must ensure every part of the lawmaking process is strong. If you start by passing a weak law, regulators only need weak to rules to uphold the spirit of the law. These weak rules in turn mean that regulators can give out permits to companies or individuals that are also weak and don’t protect the public.

In the case of Illinois’ coal ash law, Earthjustice pushed legislators early on to include key aspects in the law like financial assurances that force coal companies, not communities, to pay to clean up their coal ash. We also pushed for language in the law that called for public participation, since more than 20 closure plans for coal ash sites in Illinois were previously approved behind closed doors.

We got both the financial assurance and public participation provisions in the law, but the devil is in the regulatory details. After all, “public participation” can mean regulatory agencies hosting multiple public hearings held in English and Spanish. But if an agency says “public participation” means hosting one public hearing, in the middle of the workday, miles away from the nearest town, and during a pandemic, then many people are going to be left out of the process and won’t have a say about the coal ash in their communities.

Earthjustice has spent decades fighting to clean up coal ash, and we’ve seen firsthand how lack of public participation in creating coal ash regulations has resulted in in irreparable harm across the country. During the administrative law process, we provided hundreds of pages of technical documents to support our case — and to refute the coal industry’s case that we don’t really need strong public participation in coal ash cleanup plans.

Community groups such as Clean Power Lake County and Metro East Green Alliance, as well as members of the public across the state, also provided 120 oral comments at virtual public hearings and hundreds of written comments, expressing the need for strong regulations.

“The coal industry was perfectly happy to have no input from the public,” says Cassel, but Earthjustice made sure that wasn’t the case. Regarding the volume of technical comments we submitted, Cassel remarks, “Let’s just say my printer is in pain!”

Now what?
In February, the Illinois Pollution Control Board, one of the regulatory agencies tasked with writing rules to carry out the coal ash law, released its proposed regulations. And they look pretty good so far. Some of the board’s proposals include increased public participation opportunities and transparency; improved protections like more rigorous analysis of groundwater impacts from proposed coal ash ponds; and opening a new docket to create additional protections for historic coal ash disposal and coal ash dust.

We’re encouraged by the board’s proposed rules, which will be finalized this spring. Permit applications for coal ash cleanup will be submitted starting later this year. Thanks to our work, clean up and closure permits for polluting coal ash sites such as in Lincoln Stone Quarry, Waukegan, and Edwards will take the input of community members into account before permit decisions are made.

“We all have a constitutional right to petition our government,” says Cassel. And we’ll continue to keep up the drumbeat until Illinois regulators finalize coal ash cleanup rules that help create a healthier, safer, and more just Illinois.