Fwd: MRC FW: ELPC Litigation Victory
Scott Eustis
Colleagues: We achieved a big litigation victory yesterday in the Environmental Law and Policy Center, Advocate for a Clean Lake Erie v. U.S. Environmental Protection Agency case before the U.S. District Court for the Northern District of Ohio. U.S. District Court Judge Carr denied the U.S. EPA’s motion to dismiss ELPC’s lawsuit which “plausibly alleges that Ohio EPA has clearly and unambiguously refused to develop a TMDL for western Lake Erie.” The detailed and thorough 31-page Opinion (attached) clears out the legal underbrush, and establishes a key legal precedent: the federal Clean Water Act requires the State of Ohio and the U.S. EPA to adopt Total Maximum Daily Loads (TMDLs), which are enforceable regulatory standards to require, in this case, reductions of agricultural runoff pollution – manure from CAFOs and fertilizer from crop fields – sufficient to alleviate recurring severe toxic algae outbreaks in Western Lake Erie that threaten safe clean drinking water, damage fisheries, deter outdoor recreation and harm the economy.
Judge Carr’s Opinion explains that Ohio EPA “is essentially delaying, and intends to continue to delay indefinitely, a TMDL for western Lake Erie in favor of alleged half measures.” “Even more significantly, perhaps, Ohio does not have a plan to change course should those measures fail to remediate Lake Erie.” The Opinion essentially provides a legal roadmap of the applicable statutory standards and key facts for the Court to move to a full decision on the merits.
ELPC is joined by co-plaintiff Lucas County. The Cities of Toledo and Oregon have also weighed in with their support for requiring TMDLs.
Next steps: ELPC plans to move for summary judgment and a full ruling on the merits by spring 2020 so that the State of Ohio can move expeditiously in adopting TMDLs – enforceable regulatory standards that are sufficient to reduce phosphorus (mostly manure and fertilizer) runoff pollution into Western Lake Erie by 40% by 2025 as Ohio has committed to do. The goal is to clean up Lake Erie by sooner, rather than later, bringing to an end the recurring severe toxic algae outbreaks that harm public health, the lake’s ecology and the region’s economy.
We are proud of these results and there is much more work to be done. Please see some excellent news articles below and here. Please let me and my ELPC co-counsel Rob Michaels know if you have any questions or suggestions. Best wishes, Howard
Howard A. Learner
Executive Director,
Environmental Law & Policy Center
Please see www.elpc.org
Landmark Lake Erie lawsuit against feds allowed to continue
TOM HENRY The Blade the...@theblade.com
NOV 13, 2019 2:57 PM
Senior U.S. District Judge James G. Carr ruled Wednesday that a landmark Lake Erie lawsuit brought against the U.S. Environmental Protection Agency merits full consideration.
The suit is over the eventual cleanup strategy for the lake. The Chicago-based Environmental Law & Policy Center contends the U.S. EPA is failing to uphold the federal Clean Water Act by not requiring the state of Ohio to do what’s called a total maximum daily limit, or TMDL, program — a much more site-specific and tougher regulatory program than what Ohio has ever tried for the lake. The nation’s largest TMDL program involves a six-state program for the Chesapeake Bay.
The U.S. Department of Justice, which is representing the U.S. EPA in the matter, had asked the judge to dismiss the case, contending the agency is not required to impose such a program on Ohio. The judge, in a 31-page ruling, denied the government’s motion and said he will allow the case to proceed.
The complaint “plausibly alleges that Ohio EPA has clearly and unambiguously refused to develop a TMDL for western Lake Erie,” he wrote.
Judge Carr went on to say the Ohio EPA “is essentially delaying, and intends to continue to delay indefinitely, a TMDL for western Lake Erie in favor of alleged half measures.”
“Even more significantly, perhaps, Ohio does not have a plan to change course should those measures fail to remediate Lake Erie,” he wrote.
Lucas County — which filed a separate but similar complaint on April 18 — has been serving as ELPC’s co-plaintiff for several months now. The cities of Toledo and Oregon are recognized by the court as interested parties and the Toledo-based Advocates for a Clean Lake Erie is likewise involved in the case.
“It’s time for the U.S. EPA to follow the Clean Water Act and its requirements and it’s time for Gov. Mike DeWine to step up and adopt enforceable standards to reduce phosphorus runoff 40 percent by 2025,” Howard Learner, ELPC executive director, said regarding a non-binding goal Ohio agreed with Michigan and Ontario to achieve.
He said he expects the case will be won by early 2020, thereby giving the U.S. EPA and the Ohio EPA time to start implementing more aggressive action before next summer’s algal bloom.
Lawyers have said a complete TMDL program for such a large body of water would take years to enact.
“The court’s decision today lays out a road map for the Ohio EPA and the U.S. EPA to follow so that Lake Erie can eventually become cleaner and safer,” Mr. Learner said. “There’s now a road map for summary judgment and the legal underbrush has been cleared out.”
Lucas County Commission President Tina Skeldon Wozniak said environmental regulators need to use all tools at their disposal to improve western Lake Erie, including the nutrient source inventory that county employees developed earlier this year to better identify sites within the watershed where much of the phosphorus and nitrogen is likely coming from.
“Our position is the U.S. EPA and the states are not using all of the tools in the toolbox to clean the lake,” she said. “It seems like they're moving away from both transparency and accountability. That's more obvious than they're letting on. At the end of the day, they're not moving the needle [on the 40 percent reduction goal]. If they keep shying away from that, the lake’s going to suffer.”
A statement from the entire county board reaffirmed its desire to move forward with the lawsuit.
Gov. Mike DeWine is scheduled to visit Toledo on Thursday to discuss his H2Ohio program, which the Ohio General Assembly has funded at $172 million for water quality improvements statewide.
It is unclear if he will address the judge’s ruling. His press secretary, Dan Tierney, did not respond to a request for comment, and Ohio EPA spokesman Heidi Griesmer said state environmental agency officials did not plan to comment because the agency is not listed as a defendant.
The U.S. EPA officials did not respond to a request for comment. In the past, the agency has cited a policy of not responding to pending litigation.
https://pittsburgh.cbslocal.com/2019/11/13/judge-allows-lawsuit-seeking-action-on-lake-erie-algae/
November 13, 2019 at 3:19 pm
Judge Allows Lawsuit Seeking Action On Lake Erie Algae
TOLEDO, Ohio (AP) – A federal judge in Ohio says an environmental group pushing for mandatory regulations to prevent toxic algae blooms on Lake Erie can move forward with its lawsuit.
The judge in Toledo issued a ruling Wednesday denying the U.S. Environmental Protection Agency’s request to dismiss the lawsuit.
The lawsuit says the U.S. EPA must hold Ohio accountable for reducing the polluting runoff that feeds the algae and that the state’s reliance on largely voluntary efforts aren’t working.
Howard Lerner of the Environmental Law & Policy Center said he’s pleased with the ruling and now hopes that the court will quickly decide to force Ohio to adopt enforceable regulatory standards for the lake.
A message seeking comment was left with the U.S. EPA.
https://www.beaconjournal.com/news/20191113/regional-news-briefs-nov-14-2014-hundreds-of-athletes-volunteers-expected-at-special-olympics-swim-meet
Regional news briefs, Nov. 14, 2014
TOLEDO
Judge allows lawsuit seeking action on Lake Erie algae
A federal judge in Ohio says an environmental group pushing for mandatory regulations to prevent toxic algae blooms on Lake Erie can move forward with its lawsuit.
The judge in Toledo issued a ruling Wednesday denying the U.S. Environmental Protection Agency’s request to dismiss the lawsuit.
The lawsuit says the U.S. EPA must hold Ohio accountable for reducing the polluting runoff that feeds the algae and that the state’s reliance on largely voluntary efforts aren’t working.
Howard Lerner of the Environmental Law & Policy Center said he’s pleased with the ruling and now hopes that the court will quickly decide to force Ohio to adopt enforceable regulatory standards for the lake.
Howard A. Learner
Executive Director,
Environmental Law & Policy Center
Please see www.elpc.org
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Liz Barry
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