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    Judge Carr dismisses Lake Erie litigation

    Judge Carr issued an order on October 3, 2018, in Environmental Law and Policy Center, et al., v. U.S. EPA, et al., effectively dismissing the litigation and providing no clear path forward for challenges of Ohio EPA’s plan to delay pursuit of a TMDL for the open waters of Lake Erie.

    The case involves several environmental groups and individuals as plaintiffs, US EPA as defendant, the Lucas County Commissioners as intervenor and four separate amicus curiae (City of Oregon, City of Toledo, Lake Erie Foundation and Guardians of Grand Lake St. Marys). The primary issue for the court’s consideration was whether US EPA was arbitrary and capricious in approving Ohio’s 2016 list of impaired waters pursuant to the Clean Water Act section 303(d), in which Ohio failed to include the open waters of Lake Erie. In a previous order issued on April 11, 2018, Judge Carr was highly critical of Ohio EPA and US EPA for failing to list Lake Erie as impaired. Judge Carr withheld ruling on the summary judgment motions before him at that time and remanded the case to US EPA, ordering US EPA to consider various factors that he found it should have considered and did not when it made its prior impairment listing approvals. 

    Following Judge Carr’s April 11, 2018, order, US EPA withdrew its approval of Ohio’s 303(d) impaired waters list; on May 4, 2018, Ohio EPA submitted an amended list, declaring three new assessment units for Lake Erie’s open waters impaired; and on May 10, 2018, US EPA approved Ohio’s amended 2016 submission. This had the effect of removing Judge Carr’s basis for jurisdiction for review pursuant to the Administrative Procedure Act (APA), because the “final agency action” that the plaintiffs were appealing pursuant to the APA (US EPA’s approval of Ohio’s 2016 impaired waters list) was now withdrawn. With its amended 2016 submission, Ohio EPA additionally stated that it has no plans to develop a TMDL for phosphorus runoff in Lake Erie’s open waters, instead choosing to follow the collaborative process established under Annex 4 of the Great Lakes Water Quality Agreement, which includes phosphorus reduction goals of 20 percent  by 2020 and 40 percent by 2025. Only if this collaborative process fails does Ohio EPA recognize that a TMDL or other approach may be required.

    In his October 3, 2018, order, Judge Carr confirmed that once US EPA withdrew its former approval of Ohio’s 2016 impaired waters listing, there was no longer was a “final agency action” for him to review. The majority of the decision, however, assesses the plaintiffs’ motion for leave to supplement the complaint to challenge what the plaintiffs argued constituted US EPA’s approval of Ohio EPA’s refusal to develop a TMDL for Lake Erie’s open waters. Ultimately, Judge Carr finds no basis for allowing the plaintiffs to supplement their complaint, ruling that there is no evidence that the US EPA approved of Ohio EPA’s decision to avoid/delay development of a TMDL and no basis in the Clean Water Act to find that US EPA has a nondiscretionary duty to approve of or deny Ohio EPA’s decision to do so at this time.

    As with his earlier decision, Judge Carr is highly critical of Ohio EPA and US EPA and states that the General Assembly and executive branch have “turned their backs on a long-standing, persistent, and possibly worsening problem.” But Judge Carr makes clear his belief that the current factual scenario is not properly before the courts, stating “Congress gave the states the responsibility, the obligation, and the duty to protect the wellbeing of their residents. Where the state fails to do so, it is for its citizens whose welfare is at risk – and not the courts, and certainly not the federal courts – to hold the state’s officials to account.  That is the way our federal system of government is meant to work.  If it does not work, the citizens who want it to do so must, under our Constitution and laws, look elsewhere other than the courts to make it work.”

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