Judge says algae lawsuit has too many loopholes

8/21/2018

Though clearly frustrated by the state of Ohio’s response to toxic algal blooms that have carpeted western Lake Erie’s surface the past 23 summers, Senior U.S. District Judge James G. Carr said in open court Tuesday he worries he is on “thin ice” with the case before him.

He said he welcomes a new version of it to be filed in hopes of eliminating any outstanding administrative issues the federal government might use to get his ultimate decision thrown out on appeal, while recognizing that a new filing would likely result in additional delays.

“I’m concerned my hands will be tied,” Judge Carr said, explaining that he believes the current case is going into uncharted territory and needs to have some bureaucratic loopholes eliminated. “I'm a little wary of skating on too thin ice.”

Madeline Fleisher, a Columbus-based attorney arguing the case on behalf of the Environmental Law & Policy Center, said she believes the judge was trying to tell her the case has merit but is too vulnerable to being thrown out on appeal the way it’s written now. Her group, which along with Advocates for a Clean Lake Erie sued the U.S. Environmental Protection Agency, will soon decide its next move.

The case was originally filed in 2017 over the federal EPA’s decision to let the state of Ohio off the hook for not declaring western Lake Erie as impaired, a move the Kasich administration ultimately did last March after years of resistance on behalf of agriculture.

“My interpretation of what Judge Carr is trying to do is to make it as solid as possible,” Ms. Fleisher said after a hearing that lasted nearly 2.5 hours and focused almost exclusively on administrative procedure. “I think Judge Carr is trying to say ‘How bad does it have to get?’ He views himself as the last resort.”

She told the judge at the end of the hearing that her group’s concern all along has been having its demand for an appropriate cleanup strategy disappear “into a bureaucratic black hole.”

Dan Dertke and Jody King, two U.S. Department of Justice attorneys representing the U.S. EPA in the case, renewed their argument that the judge has lacked jurisdiction since the impairment issue was settled. The ELPC and ACLE have maintained the impairment declaration obligates the U.S. EPA to order Ohio to do a comprehensive cleanup strategy called a total maximum daily load, or TMDL — and that the judge has every right to enforce that under the federal Clean Water Act.

In a July 18 letter, Ms. Fleisher accused the U.S. EPA of “once again engaging in [a] procedural sleight-of-hand” and engaging in “lip service” in an attempt to obscure the substance of the case,” almost echoing an admonishment the judge made in a 25-page order back in April when he accused the two regulatory agencies of botching the Lake Erie impairment controversy and, at one point, accused the U.S. EPA of demonstrating a “whiff of bad faith.”

Ms. Fleisher’s letter put acting U.S. EPA Administrator Andrew Wheeler on notice that the agency will be sued to force a decision on a TMDL if it either doesn’t agree to do one itself within 60 days or order Ohio to do one. That window closes Sept. 16, meaning any new lawsuit would likely be filed after then.

Judge Carr said he has reservations about Ohio’s plan to stick with voluntary incentives for curbing phosphorus runoff until at least 2025, when — under an annex to the Great Lakes Water Quality Agreement — Ohio, Michigan, and Ontario are hoping to have reduced such releases by 40 percent. Most experts agree that unenforceable target is unlikely to be met, based on current trends.

“Ohio is doing a good bit, but is it doing what needs to be done?” the judge asked. “I think the records show clearly the efforts Ohio has taken with voluntary compliance have had no discernible effect. ... It seems like common sense. We can’t be endlessly dumping that stuff into the lake.”

The judge also said he would like to see the Ohio EPA take an active role in the case, perhaps as an amicus — that is friend of the court — partner with the defendant.

Heidi Griesmer, Ohio EPA spokesman, said state agency staffers were at the hearing.

“We heard Judge Carr’s request for more information and we will consider it,” she said.

Another alternative strategy to a TMDL, Gov. John Kasich’s attempt this summer to declare eight western Lake Erie watersheds in distress for pollution, backfired when Republican lawmakers and the Ohio Farm Bureau Federation persuaded the Ohio Soil and Water Conservation Commission to grant an indefinite delay — one that almost certainly will remain in effect until after a new governor is elected this fall.

No action was taken on Lucas County’s request to join the ELPC and ACLE as a third plaintiff. That motion was filed Monday.

The cities of Toledo and Oregon, as well as the Lake Erie Foundation and Guardians of Grand Lake St. Marys, have been approved as friends of the court for the plaintiffs.

Contact Tom Henry at thenry@theblade.com, 419-724-6079, or via Twitter @ecowriterohio.