CLEAN WATER

Environmental Groups File 60-day Notice of Clean Water Act Lawsuit Against U.S. EPA

FOR IMMEDIATE RELEASE

Environmental Groups File 60-day Notice of Clean Water Act Lawsuit Against U.S. EPA for Failure to Act After Finding of Impaired Waterways in NE Indiana

Agricultural runoff in NE Indiana waterways contribute to harmful algal blooms in Lake Erie

Hammond, IN – Today, the Environmental Law & Policy Center, Alliance for the Great Lakes and Hoosier Environmental Council filed a 60-day notice under the Clean Water Act for a potential lawsuit against the U.S. Environmental Protection Agency for its failure to act to approve or disapprove Indiana Department of Environmental Management’s (IDEM) impaired waters list submitted on August 17, 2018. Under the Clean Water Act, the U.S. EPA is required to approve or disapprove of the submitted list within 30 days of its submission.

Many of the streams and rivers in Northeast Indiana that flow into the Maumee River and then into western Lake Erie are listed as impaired in IDEM’s August 2018 report to U.S. EPA. Western Lake Erie has been plagued by harmful algal blooms for many summers because of nutrient pollution due to agricultural runoff from manure and fertilizers into waterways that are part of several watersheds in Indiana and Ohio.

“The U.S. EPA has a legal obligation to promptly address Indiana’s findings that its rivers are impaired by pollution,” said Howard Learner, Executive Director of the Environmental Law & Policy Center, and attorney for the environmental groups sending the notice of intent to sue letter. “U.S. EPA’s failure to approve or deny IDEM’s report within the statutory 30-day period and to require enforceable standards to reduce the sources of that contamination violates the Clean Water Act. The U.S. EPA cannot dodge and duck its legal responsibilities under the Clean Water Act to make sure that Indiana takes the necessary action to reduce agricultural runoff of phosphorus pollution that is causing impaired waters that harm public health and the environment in the Lake Erie basin.”

“The Clean Water Act can protect our drinking water and public health, but only if U.S. EPA follows its own rules,” said Alliance for the Great Lakes President and CEO Joel Brammeier. “By failing to make a decision about Indiana’s impaired waters list, EPA is kicking the can down the road and slowing progress on cleaning up Lake Erie. With this notice, we are holding them accountable.”

“The Hoosier Environmental Council is counting on EPA to respond and take their long overdue actions so that we can see more progress on Indiana’s waterways,” said Indra Frank, MD, Environmental Health & Water Policy Director at the Hoosier Environmental Council.

Every two years, state agencies are required to submit an integrated report to U.S. EPA that includes their list of impaired waterways. For waters suffering from nutrient pollution, IDEM or the U.S. EPA must then design and implement enforceable regulatory standards to reduce the agricultural runoff of phosphorus pollution from fertilizers and CAFO manure that is causing the impairment. Moreover, these Indiana waterways then flow into western Lake Erie, causing toxic algae blooms that threaten safe drinking water, harm fisheries and impair outdoor recreation.

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Wisconsin PSC/DNR Draft Environmental Impact Statement Echoes Concerns of Unneeded Transmission Line Harming Driftless Area

FOR IMMEDIATE RELEASE

Contacts:
Dave Clutter, Driftless Area Land Conservancy, (608) 692-2153, Dave@driftlessconservancy.org
George Meyer, Wisconsin Wildlife Federation, (608) 516-5545, georgemeyer@tds.net
Judith Nemes, Environmental Law & Policy Center, (312) 795-3706, JNemes@elpc.org

Wisconsin PSC/DNR Draft Environmental Impact Statement Echoes Conservation Groups & Natural Resource Experts’ Concerns of Unneeded Huge Transmission Line Harming Scenic Driftless Area

State report identifies harmful impacts, need for huge transmission line questioned

Dodgeville, WI – The Wisconsin Department of Natural Resources’ and Public Service Commission’s just-released draft Environmental Impact Statement (EIS) confirms many of the same vital natural resources concerns over American Transmission Company’s (ATC) proposed huge Cardinal-Hickory Creek transmission line and 17-story high towers already voiced by local conservation groups and leading natural resources experts. The proposed transmission line would cut a wide swath through the Driftless Area’s scenic landscapes, conservation lands, parklands, key waterways, and other natural resource treasures. This is the wrong place for a huge transmission line, which, in any case, is not needed for electricity reliability.

According to Driftless Area Land Conservancy Executive Director David Clutter: “The Driftless Area is a nationally significant landscape that should be protected. We appreciated that Wisconsin’s Department of Natural Resources’ draft EIS recognized many of the same potential harms we and others identified that a massive transmission line and its 17-story high towers would inflict upon this unique treasure in the Midwest.”

A top-rate team of Wisconsin’s leading natural resources experts presented their concerns in written comments filed in January with the Wisconsin Public Service Commission and Wisconsin Department of Natural Resources. Their comments were submitted on behalf of the Driftless Area Land Conservancy and the Wisconsin Wildlife Federation by the Environmental Law & Policy Center, which is serving as their public legal counsel.

George Meyer, Executive Director of the Wisconsin Wildlife Federation and former Director of Wisconsin’s Department of Natural Resources, said: “The Driftless Area and specifically the locations that would be harmed by the Cardinal-Hickory Creek transmission line provide critical habitat for fish and wildlife. State, federal and local governments have invested many millions of dollars in lands for fish and wildlife habitat, public access and recreational purposes including hunting, fishing, trapping, biking, hiking and birdwatching which generate scores of millions of dollars into the local and state economies. The value of these public lands will be significantly degraded by the construction of the proposed Cardinal-Hickory Creek transmission line.”

Howard Learner, Executive Director at the Environmental Law & Policy Center and one of the attorneys for the Driftless Area Land Conservancy and the Wisconsin Wildlife Federation said:  “The Driftless Area is the wrong place for a huge transmission line, which is not needed for reliability in any case as electricity demand is flat and there is already surplus power. The proposed costly transmission line is yesterday’s misguided way to meet future energy needs for people and businesses in Wisconsin.  There are better, cleaner, and more flexible solar energy, storage, wind power and energy efficiency resources in southwest Wisconsin that would create jobs and economic growth here instead of subsidizing out-of-state energy including fossil fuel generation.”

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ELPC Sues US EPA for Compliance Plan to Reduce Phosphorus Pollution in Western Lake Erie

FOR IMMEDIATE RELEASE

Contact: Judith Nemes, (312) 795-3706, JNemes@elpc.org

ELPC Sues US EPA for Compliance Plan to Reduce Phosphorus Pollution That Creates Harmful Algae Blooms in Western Lake Erie

ELPC asks Court to keep EPA on Schedule to Clean Up Lake Erie

Toledo, OH – The Environmental Law & Policy Center (ELPC) today filed a new related lawsuit in the United States District Court for the Northern District of Ohio challenging the United States Environmental Protection Agency’s approval of an Ohio EPA July 2018 report as legally inadequate. The Ohio EPA’s 2018 report provided no effective plan for reducing phosphorus pollution into western Lake Erie which is now designated as “impaired” waters under the Clean Water Act.

ELPC and co-plaintiff Advocates for a Clean Lake Erie (ACLE) are seeking a judicial remedy providing a compliance plan to require progress on a specific timeline to reduce phosphorus pollution in western Lake Erie by 2025, and provide for public accountability. Phosphorus in manure and fertilizer runoff from agricultural sources is the principal cause of harmful algal blooms that have plagued Lake Erie for many years.

“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,” said Howard Learner, ELPC’s Executive Director. “The Court should require EPA to do its job well by promptly adopting and implementing an effective Clean Water Act plan to limit manure and fertilizer runoff that causes harmful algal blooms.”

The Clean Water Act requires an effective plan that implements a Total Maximum Daily Load (TMDL) cap to limit pollution discharges into the Maumee River system, which flows into western Lake Erie. But Ohio EPA argues that it must only follow the non-binding Great Lakes Water Quality Agreement instead of a TMDL with enforceable regulatory standards.

Neither U.S. EPA nor Ohio EPA have followed the TMDL process to reduce pollution of manure from industrial animal feedlots and fertilizers from large agricultural operations that run off into rivers and streams that eventually result in phosphorus entering into Lake Erie.

“The Court has an important role to play in making sure Ohio doesn’t waste more time delaying effective measures to protect Lake Erie from pollution,” said Madeline Fleisher, ELPC Senior Attorney. “U.S. EPA isn’t holding the state accountable so we’re asking the court to do so.”

“The Clean Water Act is the law of the land, but Ohio keeps trying to escape its legal obligation to protect Lake Erie from factory farm pollution,” said Mike Ferner, a coordinator at ACLE. “The state has said western Lake Erie is one of its highest priorities, and the court shouldn’t let Ohio EPA and U.S. EPA get away with simply lip service.”

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2018 Year End Report

ELPC has been protecting the Midwest’s environment and natural heritage for 25 years. In 2018, we expanded our team of skilled public interest attorneys, policy advocates and communications specialists. We remain focused on the strategic legal, policy and advocacy work that has made ELPC so effective. This work has never been more important and we look forward to more successes in 2019.

To learn more about our 25 years of successful environmental advocacy, download our 2018 End of Year report or view below.

EPA’s Proposed Weakening of Mercury Pollution Reduction Standards (MATS) Threatens Children’s and Women’s Health, and Great Lakes Fisheries

FOR IMMEDIATE RELEASE

Contact: Judith Nemes, 773-892-7494, JNemes@elpc.org

Environmental Protection Agency’s Proposed Weakening of Mercury Pollution Reduction Standards (MATS) Threatens Children’s and Women’s Health, and Great Lakes Fisheries

STATEMENT BY HOWARD A. LEARNER

EXECUTIVE DIRECTOR, ENVIRONMENTAL LAW & POLICY CENTER

“The Trump EPA’s proposal to weaken mercury and air toxics pollution reduction standards threatens children’s health and the Great Lakes. State public health officials continue to issue ‘mercury advisories’ warning people, especially young children and pregnant women, to limit their intake of fish from most of the Great Lakes and inland lakes in the Midwest. Sadly, it’s not safe for many people to eat the fish that they catch in the Great Lakes.

The Trump EPA’s proposal undermines MATS by retroactively recalculating the costs and benefits of the rule, which most utilities have already fully implemented. The misguided proposed changes leave MATS legally vulnerable and foolishly make it harder to strengthen mercury pollution reduction standards in the future to better protect children’s and women’s health, and Great Lakes fisheries.

Mercury is a known neurotoxin that impairs fetal brain development when it gets into pregnant women’s bloodstreams and crosses the placental barrier. Most coal plants have already installed pollution control systems for mercury in response to the MATS rule that the U.S. EPA issued in 2011. The U.S. EPA should not reverse course and loosen the way co-benefits are analyzed in the future that could lead to softening future standards. Coal plants’ owners should continue to install and operate modern pollution control equipment to reduce mercury and other toxic air pollution. These are common sense safeguards.

The Trump EPA’s rollback skews the regulatory benefit-cost analysis by excluding the important real world co-benefits of reducing pollutants that harm public health and the environment. This flies in the face of sound benefit-cost analysis, and it comes at the expense of our children’s health.

The Trump EPA should not lose sight of its core mission, which includes protecting the public’s health from mercury and other dangerous air toxics.”

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Trump Administration’s Clean Water Rollback Threatens America’s Drinking Water

FOR IMMEDIATE RELEASE

Sarah Eddy, 312-795-3710, seddy@elpc.org

Trump Administration’s Clean Water Rollback Threatens America’s Drinking Water

Pausing Clean Water Protections Wrong for the Great Lakes Region and America

CHICAGO – Today’s announcement by the Trump Administration’s EPA to rollback federal clean water rules undermines safe clean drinking water across the nation and threatens progress to protect the Midwest’s vital waterways, including the Great Lakes and the Mississippi River basins.

“The Trump Administration’s attacks on safe clean drinking water are a threat to the environment and public health. Too many Midwest cities and towns are already experiencing unsafe drinking water, and this rollback of critical protections of our community waterways will only exacerbate the problem,” said Howard Learner, Executive Director of the Environmental Law & Policy Center.

The action today rolls back clean water rules that define which waterways are protected by the Clean Water Act. The 2015 Waters of the United States standard recognized that our water resources are so interconnected that in order to protect our celebrated waterways – like the Mississippi River and the Great Lakes – it’s necessary to protect the backyard brooks, community creeks, and steady streams that feed them.

“This foolish proposal rejects science and it imperils progress for safe clean drinking water in the Midwest,” Learner said. “The interconnectedness of our waterways must have federal oversight to ensure the safety and security of our fresh water. We need more protections for the clean water we all rely upon for drinking, fishing, and recreation, not less. We can’t afford to go backwards when it comes to reducing pollution of rivers, lakes, and streams.”

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MinnPost: Why a Clean Water Rule May – Or May Not – Be a Big Issue in Minnesota’s First Congressional District

Why a Clean Water Rule May – Or May Not – Be a Big Issue in Minnesota’s First Congressional District

By Walker Orenstein

As farmers in southern Minnesota grapple with President Donald Trump’s escalating trade war — testing the alliance between the agriculture industry and the GOP that substantially benefited Trump in 2016 —  First Congressional District Republican candidate Jim Hagedorn is making sure to showcase the administration’s industry-friendly policies as part of his effort to persuade voters to send him to Congress.

That means highlighting support for mining in northern Minnesota, including the recent decision to end a study of potential impact from copper-nickel mining on the Superior National Forest and the neighboring Boundary Waters Canoe Area Wilderness.

But it also includes touting a Trump administration effort that hits much closer to home in southern Minnesota: the rollback of a 2015 update to the Clean Water Act that expanded protections to small bodies of water feeding larger rivers and lakes — a policy that happened to be one of President Barack Obama’s signature environmental initiatives.

“It’s one of the biggest regulatory issues in agriculture,” Hagedorn said. “I bring it up all the time.”

A fight over water protections

The Obama EPA’s 2015 rule change has a long backstory. It starts more than 40 years ago, when Congress first approved the Clean Water Act. That original bill gave the federal government jurisdiction over the “waters of the United States.”

Ever since, people have not stopped arguing what that actually means, and how broad the government’s authority is under the law. Does it apply only to  lakes and rivers and water that feeds directly into them? Or does the law cover even small wetlands, bogs, streams and other isolated or seasonal bits of water?

Supreme Court rulings on the matter have never quite cleared things up, so under Obama, the EPA stepped in to make firm — and far-reaching — guidelines on what could be considered a Water of the United States. John Kolb, a St. Cloud-based attorney who focuses on water and natural resources regulations, says a long study conducted by the EPA used to justify its rule boiled down to: “All water is connected.”

Many farmers took issue with the decision, however. Beyond their general opposition to government expansion, industry groups said the rule change meant they were going to be targeted and penalized for standard agricultural practices. Kirby Hettver, president of the Minnesota Corn Growers Association, said farmers out West were found in violation of Obama-era Clean Water Act “just for tilling their soil.”

He was referring to a case that began in 2012 in which the government ordered a farmer in Northern California, John Duarte, to pay millions in fines and penalties after it said he broke the law by “deep ripping” his field to plant wheat without a permit, and disturbing seasonal wetlands called vernal pools that are notably home to fairy shrimp. (While there are plenty of agricultural exemptions to the Clean Water Act, the government said the field wasn’t subject to them since it hadn’t been plowed in decades. The case was eventually settled.)

While Duarte’s legal saga started before Obama’s update to the Clean Water Act, it became a rallying cry for conservatives worried about government overreach, a charge that found a sympathetic reception within the Trump administration. Earlier this year, the EPA withdrew the rule and is now in the process of writing a more narrow definition of which waters are protected under the Clean Water Act.

Effect in Minnesota

And yet, whether any of this means much for Minnesota remains a topic of debate. One reason is that despite the Trump EPA’s withdrawal of Obama’s Waters of the United States rule, litigation has reinstituted the Obama rule in more than 20 states, including Minnesota.

For another, Minnesota administers much of the Clean Water Act for itself, and it adopted its own stringent definition of protected waters decades ago, said Jean Coleman, an attorney for the Minnesota Pollution Control Agency. In fact, Minnesota’s rule is far broader than the Obama-era water rule, and includes everything from irrigation and drainage systems to all “accumulations of water, surface or underground, natural or artificial, public or private,” within the state, she said.

“The definition of ‘Waters of the State’ is extremely expansive and it captures all waters that would be under the Obama definition of ‘Waters of the U.S.’ or under any other definition of ‘Waters of the U.S.’ because it is so expansive,” Coleman said.

She added: “I don’t think you can think of anything that’s liquid water that falls from the sky that’s not a water of the state.”

The state also has its own tough laws protecting wetlands and more, said Scott Strand, senior attorney for the Environmental Law and Policy Center, a nonprofit environmental advocacy group. Those laws blunt any given update or reversal of the federal Waters of the United States rule. “It will have a more dramatic impact in states that don’t have vigorous state clean water protections,” Strand said of the changes to the Waters of the United States rule.

 

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Crain’s Chicago Business: Michigan Offers to Pay Millions for Illinois Asian Carp Project, but Rauner Balks

 

Michigan Offers to Pay Millions for Illinois Project, but Rauner Balks

Greg Hinz On Politics

It’s an unusual plan: A neighbor state would pick up most of the tab for efforts to keep Asian carp out of the Great Lakes. What’s keeping Rauner from signing up?

States nowadays have trouble paying for the stuff within their borders that’s important, much less offering to pick up the tab for a project in another state. And when they do, you’d think the recipient would say yes.

But not Illinois Gov. Bruce Rauner. Though the state of Michigan is offering to pony up millions of dollars a year to pay the costs of operating new Asian carp-blocking locks along the Illinois River at Brandon Road near Joliet—with seven other states and the Canadian province of Ontario chipping in, too—Rauner is not saying yes, at least so far.

The usual offer to pay costs for a project located in Illinois comes from outgoing Michigan Gov. Rick Snyder—like Rauner, a Republican.

In a phone interview yesterday, Snyder strongly pushed a “fair share” plan in which Illinois would pay just $132,700 a year of the estimated $8 million needed to operate the Brandon facility. Michigan itself would pay $3.3 million a year, based on its share of the total Great Lakes coastline, and legislative leaders in that state are committed to pay that amount for at least five years, more than $16 million total.

“We’re interested in (protecting) the Great Lakes,” which scientists say could suffer enormous losses to native fish if the voracious carp make it that far, Snyder said. “Why wouldn’t Illinois be excited about sharing project costs?”

Snyder said that regular discussions have been occurring for months among officials from the various states and provinces, including Wisconsin, New York, Ohio, Minnesota, Pennsylvania and Indiana. Now, it’s time to act, he said.

“We’d just as soon quit dating and get married,” Snyder quipped. “We’d like to get an agreement with Illinois.”

Michigan is so interested that it will pick up any other state’s portion of the bill if they can’t pay it themselves, he said.

Rauner, in an interview after he appeared before the Crain’s editorial board yesterday, indicated some interest. But he didn’t offer to sign up, either.

“The idea certainly has merit. We’ve been talking to (Snyder) about it,” Rauner said. But “we’re not committed to it.”

Rauner declined to elaborate, but there has been considerable back and forth lately about who will pay for construction costs that could hit $200 million or more.

Since I last wrote about this in May, the Rauner administration has dropped its request to double the width of locks to 1,200 feet to help the barge industry. Officials say barge needs can be accommodated in other locations.

In addition, Congress is in the final stages of passing legislation that directs the Army Corps of Engineers to finalize its Brandon Road study and put a specific proposal on the table by early next year. The legislation also would require the feds to pay at least 80 percent of construction costs.

That still would leave Illinois with a capital bill, but according to local environmental leader Howard Learner of the Environmental Law & Policy Center, other states are willing to pick up part of the construction costs, too.

“Rauner needs to find a way to say yes,” Learner said.

Snyder’s comments came as Michigan released results of a public opinion poll that indicate 80 percent of Great Lakes residents want action soon on the Brandon Road proposal.

READ COLUMN HERE

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Detroit Free Press OpEd: President Trump’s War on the Great Lakes

 

August 30, 2018

President Trump’s War on the Great Lakes

OpEd

By Howard Learner

Summertime reminds us that the Great Lakes are a great natural treasure. Forty-two million people rely on this freshwater for safe drinking water supplies, but it’s more than that. The Great Lakes is where we live, work and play.

President Donald Trump doesn’t seem to get it. He won the 2016 election in the Great Lakes states, but Trump’s policy shifts and budget cuts amount to a war on the Great Lakes. The President’s budgets have proposed to zero-out or cut 90% of funding for the successful Great Lakes Restoration Initiative. Congress has twice rejected those cuts and restored full funding of $300 million annually.

The Department of Commerce is proposing to cutting the acreage of the popular Thunder Bay National Marine Sanctuary in Lake Huron along the Alpena to Mackinaw City shoreline. The EPA is attempting to roll back common-sense Clean Water Act standards that protect safe clean drinking water. What is President Trump thinking?

Both Michigan Republican and Democratic leaders have publicly disagreed with these misguided proposals. So have business, civic and environmental groups. Protecting the Great Lakes is bipartisan and nonpartisan.

The Great Lakes are a global gem. They contain 21% of the planet’s fresh water supply and provide a rich aquatic habitat for many species. The Great Lakes support a $7 billion annual fishing industry, and draw tourists who support shoreline communities’ economies.
Military analysts say future wars will be fought over water. Fresh water availability is our region’s competitive advantage. We can’t afford to mess it up. So, why this war on the Great Lakes?

First, the Great Lakes Restoration Initiative is a common-sense program that supports shoreline and wetlands protection projects, keeping out invasive species and reducing harmful algae blooms. Congress has again rejected the President’s budget cuts and restored full funding for this important program. The White House’s response: a new Statement of Administration Policy opposing this funding. The bipartisan Congressional delegation and Governors strongly disagree.

Second, the Department of Commerce continues to “review” the Thunder Bay National Marine Sanctuary, the nation’s only such freshwater preserve, and proposes to cut its size down by 90% from 4,300 to 448 square miles. Six Michigan Congress members wrote to Commerce Secretary
Ross explaining the economic, tourism and ecological value of this National Marine Sanctuary, which is a source of pride and income to northeast Michigan shoreline communities.

The Thunder Bay National Marine Sanctuary draws visitors to explore “Shipwreck Alley” where 100 ships rest on Lake Huron’s bottom, and learn about Great Lakes maritime history. It’s not controversial. Gov. Snyder formally requested that Secretary Ross end the review and leave the Sanctuary boundaries alone, but the Secretary denied that request. Under the National Marine Sanctuaries Act, an adjacent state’s governor can veto a boundary change. Gov. Snyder should publicly announce that he’ll do so, and call on governor candidates Schuette and Whitmer to agree.

Third, the Trump EPA is rushing to rollback clean water standards that protect safe drinking water and preserve fish and wildlife habitat. Likewise, in federal court, the EPA is resisting sensible regulatory standards to reduce agricultural runoff pollution that causes toxic blue-green algae blooms in Lake Erie, which threaten drinking water for 500,000 people in the Toledo area and harm commercial fisheries.

Good policy is good politics. The battle for Great Lakes protection is well worth fighting for and winning, but it shouldn’t have to be fought. The public and wise political leaders know better

READ OpEd HERE

Detroit News: Environmental groups sue U.S. Coast Guard over Great Lakes oil spill response plans

by Beth LeBlanc

Two environmental groups are suing the U.S. Coast Guard for its admitted inability to respond adequately to a Great Lakes oil spill and, by extension, the lawsuit seeks to invalidate the response plans for facilities such as Enbridge, which operates Line 5 beneath the Straits of Mackinac.

The lawsuit filed Wednesday in Detroit federal district court stems from comments former Coast Guard Commandant Adm. Paul Zukunft made during a November congressional committee hearing, when he told lawmakers the agency is not prepared for a major pipeline oil spill in the Great Lakes.

His comments, the lawsuit said, belie and invalidate the Coast Guard-approved Northern Michigan Area Contingency Plan and violate the Oil Pollution Act of 1990, according to a statement from the National Wildlife Federation and the Environmental Law & Policy Center.

The current plan leaves the Coast Guard unprepared to address a worst-case spill from Enbridge’s Line 5, which could affect more than 400 miles of shoreline and 60,000 acres of wildlife habitat, said Oday Salim, a staff attorney for the National Wildlife Federation.

. . . . .

The lawsuit asks the judge to declare the approval of the Northern Michigan contingency plan a violation of the Oil Pollution Act and invalidate sections of the plan that relate to open waters and any facility-specific response plans created in coordination with the plan, including Enbridge’s facility response plan.

“You are not allowed to operate without a facility response plan,” Kearney said. “If the court agrees, as they should, that the area contingency plan is not valid then certainly one of the outcomes could be someone requesting that Line 5 be shut down.”

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