A Midwest-based environmental law center that believes western Lake Erie’s chronic algae problem can best be handled through the mandate of a federal court order has reshaped and refiled its request.
The Environmental Law & Policy Center on late Thursday brought a new lawsuit against the U.S. Environmental Protection Agency over the pace and scope of the Ohio EPA’s cleanup strategies. It is seeking a court order for substantial progress to be made by specific deadlines between now and 2025. It also said it is seeking a court order for “public accountability.”
The case was filed in U.S. District Court in Toledo, the same court where the ELPC’s original complaint had been filed.
Toledo-based Advocates for a Clean Lake Erie is listed as a co-plaintiff, while acting U.S. EPA Administrator Andrew Wheeler and Cathy Stepp, the agency’s Midwest region acting administrator, also are named as co-defendants.
The 33-page complaint accuses the federal environmental agency and its directors of being too soft on the Ohio EPA, in regard to cleanup efforts that state agency had been directing on behalf of the former Kasich administration and, now, on behalf of Gov. Mike DeWine.
The legal center argues that residents of the western Lake Erie region will never get the water quality they need unless the U.S. EPA requires the state environmental protection agency to cap pollution discharges through what’s known as a Total Maximum Daily Load, or TMDL, program.
The former Kasich administration put a cleanup strategy in place that focused on reducing algae-forming phosphorus from the basin’s most distressed waterways. But the ELPC claims that is not aggressive enough, in part because it is non-binding itself and based around non-binding goals negotiated with Michigan and Ontario.
The lawsuit contends a TMDL is required under the federal Clean Water Act, and accuses the U.S. EPA of not enforcing that act.
Without a binding, more aggressive remedy, the Ohio EPA “will be able to continue dragging its feet and failing to protect western Lake Erie waters for many years more with limited legal and public accountability, while people in Ohio and the entire region suffer significant harm from recurring outbreaks of harmful algal blooms,” the newest lawsuit states.
The original action brought by the ELPC focused on the U.S. EPA’s willingness to let the state agency avoid issuing an impairment designation for western Lake Erie - despite Michigan’s decision to do so for its smaller portion the lake.
Senior Judge James G. Carr dismissed that case in October after stating in open court it would be cleaner as a matter of law to handle dispute over cleanup strategies separate from the impairment designation, which the Kasich administration eventually made.
The DeWine administration has not stated publicly yet if it plans to keep the Kasich administration’s cleanup strategy in place, or move on to something else. The U.S. EPA has declined comment all along, citing its policy against commenting on pending litigation.
Mr. DeWine’s press secretary, Dan Tierney, stated only that the lawsuit “is being reviewed by Ohio EPA.”
“The Clean Water Act provides a specific legal pathway to reduce phosphorus pollution causing harmful algae blooms in western Lake Erie, but U.S. EPA and Ohio EPA refuse to follow the law,” Howard Learner, ELPC executive director, said.
Mike Ferner, ACLE coordinator, said he wants the court to keep the two agencies from getting away “with simply lip service.”
First Published February 8, 2019, 5:02 a.m.
