Howard’s Blog

Let’s Revitalize the Chicago Pedway – Op-Ed in Crain’s Chicago Business

Let’s Revitalize the Chicago Pedway

Op-Ed by ELPC Executive Director Howard Learner

It’s a frigid Chicago winter day and downtown sidewalks are slushy and icy, or it’s a rainy summer day. What does a savvy Chicagoan do? Take the Pedway.

Want to go quickly from the CTA to City Hall, pick up coffee, and get a new watchband on the way? Take the Pedway. Looking for new art displays? Check out the Pedway. Entrepreneurs, there are available storefront opportunities with increased Pedway foot traffic.

The Chicago Pedway is an underutilized civic asset. It can be a great way to get around downtown, an engaging civic arts and culture space, and a good location for shops and restaurants.

If, today, someone proposed building a new underground Pedway, you’d ask, “How can we afford it?” The Chicago Pedway, however, is already built. Let’s leverage that investment with strategic actions to make it work better. Better navigation, better coordination and better activation.

Better navigation and wayfinding: Let’s face it—Pedway signs should be larger, eye-catching and more consistent; maps should be easier to understand and on smartphone apps; and directions should be clearer and easier to follow. Good wayfinding should connect Pedway users to above-ground locations and to the Riverwalk, Navy Pier, and transit and train stations. Better wayfinding and easier navigation tools, both above and along the Pedway, will encourage more pedestrian use. This should work well for everybody, not just “Pedway-niks.”

Better coordination: The Pedway maps as a continuous system, but it’s actually spliced-together segments owned by different public and private owners. Coordinating Pedway operating hours, lighting, accessibility and safety helps everybody: Metra commuters from the Millennium Park and Van Buren Metra stations, and CTA train riders going to City Hall and downtown office buildings; tourists going from east of Michigan Avenue hotels to Loop theaters and restaurants; and downtown workers and residents going from place to place. The recent Chicago Pedway Revitalization Study identified high-value repairs and upgrades for action.

Better activation: Better placemaking activates the Pedway and engages people. Pedway users shop at the retail spaces in Block 37 and Illinois Center, and Goodman Williams Group’s retail analysis shows growth potential for more pedestrian-friendly businesses and sales tax revenues. Space p11 is a new Pedway-level gallery for off-grid art, architecture and culture. The Chicago Loop Alliance sponsors Pop-Up activations, and Broadway in Chicago does pop-up holiday caroling and theater. The Vamonde smartphone app provides a fun adventure. The Pedway should be a lively and cool space.

My organization, the Environmental Law & Policy Center, Broadway in Chicago and Chicago Loop Alliance are partnering with the city of Chicago, Cook County and building owners to repair and revitalize the Chicago Pedway.

Let’s seize the opportunities to improve pedestrian use and access. Let’s tap more retail business potential. Let’s make the Pedway a vibrant underground space for arts and culture for Chicagoans and visitors. We’ve done the heaviest lifting already by building the Pedway—now let’s use our imagination and take the practical steps to make it a great cityspace.

This post originally ran in Crain’s Chicago Business. Read the article HERE.

Chicago’s Underground Pedway Needs Better Navigation, Coordination, and Activation

ELPC is leading the civic greening initiative to revitalize the Chicago Pedway, an underutilized civic asset that connects the public transit system and can provide a good way for people to get around Chicago’s downtown especially on cold winter ways.  The Pedway has been built in pieces connecting City Hall, the County Building, Thompson Center and the Cultural Center with CTA and Metra stations, Block 37, retail businesses and entertainment venues, commercial office buildings, and residential and hotel high-rises.

There’s a 5% leveraging 95% opportunity here:  95% of the work and cost has been incurred in building the underground Pedway system.  The civic opportunity is to provide better navigation and wayfinding/signage, better coordination that unifies the separate segments, and better activation with arts and entertainment to engage the public.

The Chicago Tribune’s editorial yesterday explains the potential for improvement, and some recent articles highlight both opportunities for engaging public art spaces and challenges with sanitation and wayfinding.  There have been a series of arts installations and performances, inviting passers-by to stop and experience the space as a destination of its own, rather than just a throughway.

ELPC and our partners at Broadway in Chicago and the Loop Alliance are working to coordinating the many public and private stakeholders. The Pedway is a resource that has already been built, it already serves tens of thousands of Chicagoans and tourists every day, and it connects pedestrians and public transit. As the Chicago Tribune editorial puts it well:  Let’s “bring some magic to Chicago’s Pedway — or at least some maps!”

Check out ELPC’s Pedway Revitalization Map, or the full report to see ELPC’s vision for making the Pedway much better.  Please support ELPC’s efforts to revitalize the Chicago Pedway. Donate to ELPC here, or join our email list for updates on this and other Midwest environmental issues.

Dr. George Crabtree at ELPC Thinks: Battery Storage Is An Energy Market Game Changer

Battery storage technologies are rapidly getting better and cheaper.  They can help transform the energy market and modernize electric vehicles just as wireless technologies changed telecommunications and the ways that we live and work.  Dr. George Crabtree is Director of the Joint Center for Energy Storage Research (JCESR) at Argonne National Laboratory and one of the nation’s leading experts on battery storage technologies.

Dr. Crabtree joined us for the ELPC Thinks event on January 8, 2019 in ELPC’s Chicago Conference Center, explaining JCESR’s cutting-edge battery storage research with the broad potential impacts for accelerating clean technology, and transforming the electricity and transportation sectors.   You can watch a full video of Dr. Crabtree’s presentation here and learn more about ELPC’s work in clean energy and clean transportation here.

Protecting the Midwest Environment: 2018 Results

The November 2018 election results are a stunning rebuke of President Trump as suburban independents, moderate Republicans, and other swing voters backed Democratic US House candidates and Midwest gubernatorial and attorney general candidates. Some races were close (e.g., Wisconsin Governor and Attorney General), but many were not (e.g., Illinois and Michigan Governors and Attorneys General, and US House races).

There was, indeed, a mostly “Blue Wave”  in the Midwest that will better enable the Environmental Law  & Policy Center to play offense to advance sound environmental and clean energy policies in the Midwest states and work with the many Midwest US Representatives soon to be in key leadership positions for energy, environmental, and natural resource issues.

At the same time, ELPC’s top-rate public interest litigation attorneys are providing vital defense against President Trump’s actions to weaken the Environmental Protection Agency, and attempts to revoke or rollback more than 80 environmental regulations designed to protect healthy clean air, safe clean drinking water, and peoples’ right to live in communities without toxic threats. These core environmental values  are basic human rights and civil rights. ELPC is committed to protecting and defending these rights for all people and Midwestern communities.

The best defense is a strong offense! ELPC is strengthening and expanding our team of first-rate litigators, policy advocates, and business professionals. We’re fighting back and playing to win!

While the federal government steps back on climate change actions, ELPC is stepping up to advance climate change solutions in Midwest cities and states. We’re accelerating clean energy development to create a modern energy system that is good for the economy and good for our environment. We’re protecting the Great Lakes, and the Midwest’s wild and natural places.

Please make a generous year-end contribution to support ELPC’s work. If you give by December 31st, your gift will be matched dollar for dollar by an ELPC donor.

Here are some highlights of how ELPC is achieving strong results to protect the Midwest environment:

Victory! ELPC Wins Precedential Federal Court Decision Against Trump EPA. Must Reduce Agricultural Pollution Runoff Causing Toxic Algae Blooms in Western Lake Erie: ELPC’s strategic litigation achieved this important victory requiring the US EPA and Ohio EPA to limit agricultural phosphorus runoff from manure and fertilizers into the Maumee River watershed where it leads to harmful algae blooms that impair safe clean drinking water for Toledo, fisheries, and recreation in western Lake Erie. ELPC’s litigation team is now working to implement enforceable Clean Water Act standards to drive solutions to reduce manure and fertilizer runoff into waterways. Harmful algae blooms are a problem in several Great Lakes’ shallow bays. ELPC is leading this cleanup campaign.

Progress! Accelerating Solar Energy + Storage Solutions for All: ELPC is leading the charge for the Midwest’s clean energy market transformation by advancing policy solutions that open paths for clean technology innovations. This is good for job creation, good for economic growth, and great for the environment. After working successfully to gain legislation modernizing the Illinois Renewable Energy Standard, ELPC is now working with our coalition partners before the Illinois Commerce Commission and Illinois Power Agency to implement the law to achieve 3,000 megawatts of new solar energy projects and 1,300 megawatts of additional wind power. It’s working, and solar energy development is accelerating in Illinois. ELPC is expanding our “innovate and replicate” Solar for All model to more Midwest states in 2019.

Clean Electric School Buses for Healthier Kids and Less Pollution: ELPC leads the campaign to increase electric school buses that pollute less, especially if powered by clean renewable energy so we’re not just “trading carbon for carbon.” Children riding diesel-powered school buses are trapped into breathing harmful pollution, which can trigger respiratory illnesses, including asthma. ELPC has led advocacy efforts for Midwest states to leverage VW settlement funds for electric school buses, and, so far, Illinois, Indiana, Michigan, and Ohio have together committed $20 million. Our goal is an electrified school bus fleet charged by renewables. In addition to the direct clean air and health benefits, EV school buses can potentially enhance the grid on hot summer days when children aren’t in school and buses can act as storage. That can avoid pollution by reducing the need to run coal and gas peaker plants.

Protecting the Midwest’s Special Places: ELPC’s top-rate team of public interest litigation attorneys is hard at work in the courts and public agencies working to protect the Midwest’s most special places, including the Driftless Area (WI), Midewin National Tallgrass Prairie (IL), Mississippi River Headwaters (MN), and the Great Lakes.

As we celebrate ELPC’s 25th Anniversary, thank you for supporting ELPC’s effective strategic legal and policy advocacy to achieve both environmental progress and economic growth together in the Midwest. Please donate today and double your impact!

Our best wishes for a healthy and happy new year.

6 Reasons Why this Tax is a Crummy Way to Improve Illinois’ Roads and Bridges

6 Reasons Why this Tax is a Crummy Way to Improve Illinois’ Roads and Bridges

The political rhetoric on a possible new vehicle miles traveled (VMT) tax begs the question of whether or not this makes good sense on the merits. It doesn’t. The VMT tax is not a sound or fair way to fund Illinois’ transportation infrastructure.

Current gas tax revenues are insufficient to meet Illinois’ infrastructure needs. Oil companies, the trucking industry and a few politicians propose raising more revenues by shifting from gas taxes to VMT taxes, which charge drivers based on how many miles they travel. This would require installing a new onboard tracking device in every vehicle, and a new state bureaucracy to calculate taxes owed and assign revenues to appropriate jurisdictions.

If Illinois legislators believe that more funding is needed for infrastructure investments, then raising the gas tax is fairer, simpler and better policy. Twenty-seven states, including Indiana, Iowa and Michigan, have raised or reformed their gas taxes since 2013. Gas and other motor fuel taxes are: easily administered with existing mechanisms; capture revenues from out-of-state drivers who use Illinois roads so they pay their fair share for repairs and improvements, and effectively price carbon pollution while incentivizing cleaner cars that provide air quality improvement benefits for everyone. Here’s why the VMT tax doesn’t work well for Illinois.

First, a state VMT tax is unfair for “crossroads” states, like Illinois, with interstate highways used by millions of out-of-state drivers. Changing to VMT taxes would give a free ride to out-of-state motorists who now pay Illinois gas taxes to maintain the Illinois highways that they use. Why would Illinois policymakers want Illinois drivers to subsidize highway use for out-of-state motorists?

Second, current gas taxes are simple to administer at the pump and can be adjusted using existing mechanisms. The VMT tax would instead require installing new technology in personal cars and a costly new bureaucracy.

Third, the VMT tax would penalize modern new clean hybrid and electric vehicles that pollute much less than old internal combustion engine and diesel vehicles. These cleaner cars produce air quality, public health and other environmental quality benefits for everyone. With federal tax credits incentivizing purchases of electric vehicles, why create a new VMT tax system that charges people more?

Fourth, gas taxes price carbon to discourage greenhouse gas pollution and promote solutions. If you’re driving fuel efficient, low-polluting cars like the Chevy Bolt, Ford Focus, Nissan Leaf or Toyota Prius, then you’d pay the same VMT tax as someone driving a highly-polluting gas guzzler. Illinois won’t face a large erosion of gas tax revenues from electric vehicle market penetration for many years. There’s no real problem to solve now.

Fifth, heavy trucks that cause an extraordinary amount of road wear-and-tear could get off easy under VMT taxes. The Congressional Budget Office’s March 2011 report, in comparing gas taxes and VMT taxes, emphasized the disproportionately high road wear from trucks compared to miles driven: “Heavy trucks travel less than 10 percent of all vehicle miles, but their costs per mile are far higher than are those for passenger vehicles, and they are responsible for most pavement damage.”

Sixth, many people have sincere privacy concerns that VMT taxes require drivers to install tracking devices that enable governments to view their mileage, locations and time of travel. Pew Research’s February 2015 poll found that 67 percent of Americans said that “Not having someone watch you or listen to you without your permission” was “Very important” to them, with an additional 20 percent responding “Somewhat important.”

If legislators are reluctant to raise gas taxes, then why do they think VMT taxes would be any more popular? Illinois policymakers can support gas tax increases — as many states have already done — to improve transportation infrastructure. A VMT tax is the wrong tool to address Illinois’ transportation challenges.

This post originally ran in Crain’s Chicago Business. Read the article HERE. 

Affordable Clean Energy Rule Hearing Testimony

Testimony of Howard A. Learner,
Executive Director, Environmental Law & Policy Center

On the United States Environmental Protection Agency’s Proposed Rule:
Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions to New Source Review Program, called Affordable Clean Energy Rule. 83 Fed. Reg. 44,746

The Midwest produces more electricity from coal plants than any other region of the country, and our residents bear the full range of pollution harms to human health, the Great Lakes and our overall environmental quality.

EPA’s proposed new ACE will reverse United States’ efforts to cut carbon pollution and will allow more old coal plants to keep polluting our air and water. The 2015 Clean Power Plan established the first federal standards to reduce carbon pollution from existing coal plants. The Clean Power Plan can help drive the United States’ economy toward modern renewable energy and energy efficiency technologies that improve public health, and boost clean energy jobs in the Midwest and elsewhere. The EPA’s new proposal undermines smart climate change solutions and a growing clean energy economy future.

America’s Heartland is well positioned to lead us forward by delivering climate change solutions powered by wind power and solar energy and maximizing energy efficiency in ways that are good for Midwest jobs and economic growth. Last week, ELPC released our new report: Indiana Wind Power & Solar Energy Supply Chain Businesses: Good for Manufacturing Jobs, Good for Economic Growth and Good for Our Environment. This report highlights 89 Indiana businesses engaged in the clean energy business supply chain at 112 locations across Indiana. Policies drive markets. ELPC’s report explains in detail how Indiana should step up its policy support to compete effectively in the growing clean energy economy. You can download the ELPC report here. This report adds to ELPC’s other Midwest state reports detailing clean energy jobs.

Midwest wind power and solar energy development are good for business growth and the environment together. Renewable energy development creates many thousands of skilled manufacturing and construction jobs, and development, design and professional services jobs.

The EPA’s proposed ACE plan, however, would move our nation backwards and cost American jobs. This morning, I will make three specific points about this flawed proposal:

First, EPA’s proposed ACE is legally flawed. EPA’s proposal is contrary to any reasonable interpretation of “best system of emissions reduction” and does not fulfill the Agency’s responsibilities under the Clean Air Act to reduce harmful air pollution.

EPA’s proposal would replace the Clean Power Plan’s reasonable and achievable goal of reducing carbon pollution from the power sector by 32% with a flawed policy that instead sets no such pollution limits. The Clean Power Plan carries out the Clean Air Act’s requirement to protect public health that is endangered by carbon pollution. It provides states with clear standards and flexible tools to reduce carbon pollution. The ACE plan, however, does not.

EPA’s ACE proposal provides an incomplete menu of technologies that nominally improve the heat rate of coal plants, but provides states the option of requiring nothing at all from power plants. The ACE proposal imposes no deadlines for implementing control measures to the extent that any are required. This proposal is inconsistent with the Clean Air Act, and it abandons EPA’s responsibility to take effective actions to reduce carbon pollution from power plants, which has been found by sound science to endanger public health.

Second, the proposed ACE rule will encourage more investment in old, inefficient coal plants that should be winding down. If states require one or more improvements from the “menu,” which plant owners are not now making, that will lead to greater dispatch of these coal plants and will disrupt the market trends away from old coal plants towards new, clean energy production. EPA should not cause any industry to be more polluting, but its own analysis shows that the proposed ACE rule would do exactly that.

Third, the New Source Review changes proposed in the ACE rule are a giveaway to owners of old coal plants with no acknowledgement of who will pay the bill. EPA provides anecdotes to support its claim that coal plant owners have supposedly decided to not improve plant operating efficiency because they would need to get an air permit and might be required to install modern air pollution controls as many other coal plant owners have already done. This should not justify excusing coal plant owners from new source review requirements. The only time this change matters is when a source is actually going to increase its emissions of air pollution by a significant amount.

EPA’s own analysis shows that this proposal puts the health and safety of families and communities at risk from increased pollution. If the ACE proposal is adopted and finalized, by EPA’s own calculations that could lead to as many as 1,630 early deaths per year in 2030 compared to leaving the Clean Power Plan in place.

ELPC will be submitting additional written comments to the docket. This proposal to replace the Clean Power Plan undermines EPA’s core mission of protecting the public and our environment from harmful air pollution under the Clean Air Act. It should be withdrawn.

It’s time for America to move forward not backwards with clean energy solutions to our climate change problems. Thank you for your consideration.

Ohio Nuclear Plant Decommissioning, Clean Car Standards, Route 53 Tollway Extension in Lake County, IL., & EPA Ozone Non-Attainment Standards

ELPC Breaking News – Actions and Decisions on Multiple Fronts – Ohio Nuclear Plant Decommissioning, Clean Car Standards, Route 53 Tollway Extension in Lake County, IL, and EPA Ozone Non-Attainment Standards

To ELPC Colleagues and Supporters:  There is a lot happening – fast – at ELPC.  Four important actions yesterday on different fronts.  ELPC’s talented staff is drinking out of a firehose and playing to win.

  1. Good News on ELPC petition to the U.S. Nuclear Regulatory Commission challenging First Energy Solutions’ nuclear decommissioning shortfalls as the company is in bankruptcy. We just received word that ELPC’s 2.206 citizen petition cleared the first step of the NRC review process. The NRC’s Petition Review Board (PRB) met and decided to accept our petition for review.   Notably, they accepted ELPC’s petition in entirety—no parts of it were rejected.  The next step is for the PRB to substantively review the petition and come up with recommendations for action, which it will send to the Director.  The Director ultimately makes the final decision on what actions, if any, the NRC will take against the licensee.   Kudos to ELPC attorneys Andrene Dabaghi and Margrethe Kearney.


  1. Bad News:  The Trump Administration announced its misguided attempt to rollback federal clean cars standards and (probably unconstitutional) attempt to constrain California’s and 12 other states’ “waiver” to adopt strong state standards.  As the transportation sector has passed the energy sector for carbon pollution in the United States, the federal and state fuel efficiency standards are vital to save consumers money at the gas pump, drive technological innovation in vehicle manufacturing to keep American manufacturing competitive, gain manufacturing jobs of the future for American workers, reduce American imports of foreign oil and avoid pollution.  ELPC will be among the lead groups nationally challenging the proposed new weaker DOT/EPA clean car standards in both the court of law (comments to US Dept. of Transportation and, then, likely litigation in the federal courts) and in the court of public opinion.  Please see ELPC press release criticizing this Trump Administration regulatory rollback.  (“Trump Administration Reboot of Fuel Economy and Pollution Standards is a Misguided Step Backwards While Global Competitors Keep Moving Forward”).   ELPC Senior Law Fellow Janet McCabe and ELPC Executive Director Howard Learner will be doing a “breaking news” briefing via conference call for ELPC colleagues, donors and friends today at 10:00 am. (Register to join the briefing if you’d like.)


  1. ELPC and ten environmental and civic group partners are fighting back and winning against the Illinois Tollway Authority’s attempt to short-circuit and play “hide the ball” on the NEPA Environmental Impact Statement (EIS) process for the economically unsupportable and environmentally destructive Route 53 Tollway Extension in Lake County. As ELPC Board Chair Harry Drucker put it, this “zombie” bad tollway proposal keeps coming back.  While the Chicago Metropolitan Agency for Planning is moving to put on the brakes by downgrading the proposed Route 53 Tollway Extension in Lake County from a priority project to non-priority status, the Illinois Tollway Authority is spending $25 million to accelerate the EIS process.  On Wednesday, ELPC attorneys Howard Learner and Rachel Granneman and partners sent a letter to the Illinois Tollway Authority challenging the legality of the EIS process, and yesterday, the Illinois Tollway Authority backed off, saying that would extend the comment period on the EIS scoping comments to late September.  Please see Greg Hinz’s good article in Crain’s Chicago Business here and pasted below.


  1. New ELPC Litigation to Protect Healthier Clean Air in Illinois, Indiana and Wisconsin:  ELPC and the Respiratory Health Association (RHA) yesterday sued the U.S. Environmental Protection Agency in U.S. Court of Appeals for the D.C. Circuit, challenging the EPA’s final ozone air health standard rule, published in June 2018, that excluded certain areas in Illinois, Indiana and Wisconsin from the Chicago, Milwaukee and St. Louis “non-attainment” areas that have smog levels above the 2015 ozone standard.  ELPC’s press release explains:  “EPA has sadly disregarded the plain facts and sound science in making these designations,” said Howard Learner, ELPC’s Executive Director. “EPA has not followed the letter or the spirit of the Clean Air Act and has excluded areas involving unhealthy air quality for millions of Midwesterners.  Cleaner air is essential to public health and a strong economy in our region.”   The Clean Air Act requires EPA to designate non-attainment areas in counties where air quality fails to meet federal health standards for ozone and where local air pollution contribute to unhealthy air quality. The states must then take steps to reduce emissions that cause smog.  In 2015, EPA issued a more protective ozone air health standard, which triggered a process to identify violating areas so that clean air planning could begin.  In the Chicago, Milwaukee and St. Louis areas, EPA originally proposed more comprehensive non-attainment areas, but then excluded certain areas in its June 2018 final decision in response to opaque last-minute requests from Governors Rauner and Walker.  ELPC attorneys Scott Strand and Rachel Granneman are litigating this case with policy and technical engagement from Janet McCabe.  Please see Michael Hawthorne’s good article in the Chicago Tribune here.

ELPC is fully engaged both on offense and defense to protect the Midwest’s environment, public health and vital natural resources.  Please let me know if you have any questions or suggestions.

Best wishes, Howard

Howard A. Learner

Executive Director

Environmental Law & Policy Center


Three Big Wins for Solar Energy in Illinois

Three Big Wins for Solar Energy in Illinois

A trio of solar energy legislation in Illinois reflects the growing progress of solar development in Illinois and ELPC’s leadership work with diverse solar energy businesses, farm groups, conservation groups and municipalities to build out the policy framework.  Kudos to ELPC’s experienced Illinois legislative team led by Al Grosboll, David McEllis and Jonathan Feipel.

ELPC worked closely with the solar industry to successfully advance three important bills to support and encourage solar development.  All three bills passed with overwhelming bipartisan support in both chambers of the Illinois General Assembly and now await the Governor’s signature.  Each bill, in its own unique way, is important to successful solar energy development in Illinois.

  • SB 3214 (Solar Pollinators) – ELPC drafted this legislation after reviewing similar efforts in Minnesota and Maryland.  SB 3214 will lead to increased pollinator-friendly habitat on solar energy project sites in Illinois.  ELPC worked closely with the solar industry and conservation advocates to get buy-in; we also negotiated with the Illinois Farm Bureau to avoid confusion or opposition.  This legislation provides that if a solar company intends to present its project as “pollinator friendly,” then the solar company must meet a pollinator standard.  The University of Illinois Department of Entomology will prepare a scorecard to define a pollinator-friendly project.
  • SB 486 (Solar Project Uniform Assessments) – Illinois does not have a statewide uniform standard for assessing the value of solar energy projects.  Currently, 102 county assessors determine solar project values, and each can reach a different result, creating uncertainty within the solar industry.  Solar developers, like other businesses, desire stability and certainty.  ELPC supported the solar industry’s efforts to negotiate a uniform standard to be used by the state’s county assessors.  This is similar to the legislative work ten years ago to establish a uniform statewide standard for assessing wind power projects.
  • SB 2591 (Solar Agricultural Impact Mitigation Act) – The solar industry negotiated with the Illinois Farm Bureau to develop mitigation legislation to protect agricultural interests.  A comparable “AIM Act” is in place for wind power projects, and the Farm Bureau sought similar requirements for solar energy projects.  The initial draft legislation was problematic, but it was amended and is acceptable to the solar industry and to ELPC.  This bill is a good compromise that sets reasonable standards for solar energy projects.

ELPC Litigation Driving Results: Ohio EPA Recognizes Reality that Lake Erie Is “Impaired” by Pollution and Key Next Steps

It’s been a very good week for the Great Lakes!

First, after years of foot-dragging and inaction, the Ohio EPA reversed course, recognized reality and declared western Lake Erie to be “impaired” by pollution – mostly from agricultural runoff – that causes toxic blue-green algae, which harms ecological and human health and causes economic damage.  ELPC’s litigation against the U.S. EPA to overturn its flawed approval of the Ohio EPA’s “non-impairment” finding has driven this result.  The Ohio EPA’s reversal of its position is the key first step.  The next steps will be enforceable pollution limits and meaningful actions to reduce agricultural runoff of phosphorus and nitrates, principally from fertilizer and manure, into the Maumee River system that flows into Maumee Bay and causes algae blooms in western Lake Erie.

Second, Congress’ omnibus budget, which passed and was signed into law, includes full funding of $300 million for the Great Lakes Restoration Initiative, rejecting the Trump Administration’s zeroing-out of federal funds for this successful program.  Kudos to the Healing Our Waters coalition, which includes ELPC and many of our colleagues, on this important result.

Here’s a summary of the breakthrough for cleaning up pollution in western Lake Erie, which led to 500,000 people in the Toledo area being without safe drinking water for 72 hours in summer 2014.

For many years, the Ohio EPA refused to declare that the open waters of western Lake Erie waters are impaired by pollution under Section 303(d) of the Clean Water Act.  The State of Michigan did find that western Lake Erie is impaired by pollution, and the U.S. EPA approved that finding in February 2017.  However, the U.S. EPA also approved Ohio EPA’s non-impairment decision for western Lake Erie in May 2017.

The Environmental Law & Policy Center (ELPC) filed a lawsuit in the U.S. District Court for the Northern District of Ohio in July 2017 on behalf of both ELPC and Advocates for a Clean Lake Erie (ACLE).  We contend that the U.S. EPA’s approval of the Ohio EPA’s non-impairment finding in 2016 was arbitrary and capricious and contrary to law under the Clean Water Act and the Administrative Procedure Act.  As a matter of law and common sense, ELPC contends that the same water body – western Lake Erie – cannot legally be both impaired and non-impaired.  Moreover, as a matter of science and common sense, western Lake Erie is visibly and factually impaired by pollution.

ELPC’s legal team (Senior Attorney Madeline Fleisher and Executive Director Howard Learner, and pro bono counsel Michael Barsa) presented our case in detailed legal motions and briefs to the federal district court.  Madeline presented oral argument before U.S. District Court Judge James G. Carr in a hearing that extended for 2-1/2 hours in early March.   Judge Carr indicated that he will rule soon.

In January 2018 the U.S. EPA belatedly issued a letter withdrawing its approval of Ohio EPA’s 2016 non-impairment determination and notifying state officials that the Ohio EPA’s findings were “incomplete and thus not fully consistent with the requirements” of the federal Clean Water Act and U.S. EPA regulations in general.

Now, on March 22, 2018, the Ohio EPA released a new Clean Water Act report finally recognizing reality by designating the open waters of the western basin of Lake Erie as “impaired” by harmful algal blooms.

The Ohio EPA’s and U.S. EPA’s actions and timing here are direct result of this litigation and clearly directed at heading off or altering Judge Carr’s upcoming decision in ELPC’s lawsuit.   We expect Judge Carr to issue to his decision soon in which ELPC is asking the District Court to:  (1) Declare that the U.S. EPA’s 2017 approval of the Ohio EPA’s non-impairment finding was arbitrary and capricious and contrary to law; (2) Retain jurisdiction in this case for an appropriate remedy; and (3) Grant such additional and further relief as may be just and equitable.  The effect of Ohio EPA’s impairment decision on the Judge’s pending decision is not yet clear, but we will continue to pursue any necessary additional remedies to ensure full implementation of the Clean Water Act to protect western Lake Erie.

The Ohio EPA’s change in position is a significant victory and important first step. However, ELPC will need to keep up the pressure on the U.S. EPA and the Ohio EPA to follow up on this Clean Water Act designation with the key next steps:  enforceable standards requiring significant on-the-ground actions to reduce the agricultural manure and fertilizer runoff into the water that causes harmful algal blooms in western Lake Erie.

Howard explained what happens next in the detailed new Toledo Blade article:  “The necessary next step for Lake Erie is strong, enforceable standards to reduce the pollution that causes toxic blue-green algae, threatening safe drinking water, and crippling tourism,” Mr. Learner said.  “What Will Lake Erie’s Impairment Mean for Northwest Ohio?” (March 24, 2018)

ELPC’s communications team responded rapidly to the media interest in this important development and quickly issued ELPC’s press release on the Ohio EPA’s change of position:

“We are pleased that Gov. Kasich is now stepping up to recognize Western Lake Erie is impaired by pollution, but that’s only the key first step,” said Howard Learner, Executive Director of the Environmental Law & Policy Center. “The necessary next step for Lake Erie is strong, enforceable standards to reduce the pollution that causes toxic blue-green algae, threatening safe drinking water, and crippling tourism.”

“ELPC sued U.S. EPA to drive this result because the facts clearly pointed to Western Lake Erie’s open waters being impaired by pollution. Even with today’s announcement, ELPC will continue our effective legal advocacy until enforceable protections are in place. The stakes are too high for anything less.

Please see some of the many news articles at the following web links below

Cleveland Plain Dealer, “Lake Erie’s Western Basin ‘impaired,’ ending years of resistance by Kasich administration” (March 23, 2018)

Toledo Blade, “What Will Lake Erie’s Impairment Mean for Northwest Ohio?” (March 24, 2018)

Toledo Blade, “Kasich administration declares Lake Erie open waters as impaired” (March 23, 2018)

Toledo Blade, “Editorial:  Impairment designation a welcome victory for Lake Erie” (March 22, 2018)

Bloomberg BNA Environment and Energy, “‘Impaired’ Western Lake Erie Label May Mean More Farm Regulation” (March 22, 2018)

CBS News, “Toxic Algae Leads Ohio to Designate Western Lake Erie as “Impaired”” (March 22, 2018)

US News & World Report, “Algae Leads to ‘Impaired’ Designation for Western Lake Erie” (March 22, 2018)

ELPC hopes and believes that the Ohio EPA’s new impairment finding is a watershed (pun intended!) moment for cleaning up pollution of western Lake Erie in order to achieve vitally important ecological, economic and public health improvements and safe clean drinking water for all.

My 2017 End-of-Year Letter

This is an extraordinary time, and the time for action is now.  President Trump, U.S. EPA Administrator Pruitt, Department of Interior Secretary Zinke and others do not share the Environmental Law & Policy Center’s and your core environmental, public health, and civic values. The Trump Administration is trying to turn back the clock on almost 50 years of American progress toward cleaner water, healthier air, and safer communities.  It has already canceled 27 regulatory standards that protect public health and our environment.

ELPC is fighting back and playing to win.  ELPC’s effective strategic litigation and public advocacy are more vital than ever to confront the Trump Administration’s anti-environmental agenda in the Midwest and challenge Trump’s “War on the Great Lakes.”

The best defense is a good offense!  There are opportunities for positive progress to accelerate clean energy and clean transportation solutions to climate change problems, protect safe clean drinking water and healthy clean air, and protect the Great Lakes and other vital Midwest natural resources.  ELPC plays to win in these challenging times in the Midwest states where ELPC focuses, leads and knows how to get things done.

Please stretch this year and make a significant contribution to support ELPC’s successful and strategic legal and policy advocacy work.  Your support will help ELPC win: advancing policies that accelerate solar energy and innovative clean cars as they reach tipping points, protecting safe clean drinking water and healthier clear air for all in our communities, and protecting the Great Lakes, rivers, forests and prairies that make the Midwest a great place to live, work and play.

To learn more about all of ELPC’s winning work and 2017 successes, download our End-of-Year brochure. 


Here are some highlights of ELPC achieving strong results at this extraordinary time:

  • Winning Against Trump’s “War on the Great Lakes”.  President Trump won his election in the Great Lakes states, but his misguided policies and budgets amount to a puzzling “War on the Great Lakes.”  When the Administration suggested moving EPA’s Region 5 headquarters from Chicago to Lenexa, Kansas, ELPC exposed this proposal to the public ridicule it deserved, and the Administration backed down. When the Administration zeroed out funding for the Great Lakes Restoration Initiative – a successful program supporting 3,000 projects to keep the lakes clean, preserve shorelines, restore wetlands,, and protect safe clean drinking water – ELPC helped mobilize the public and Congress to restore the full funding of $300 million annually.

ELPC attorneys are now in federal court to overturn the U.S. EPA’s approval of the Ohio EPA’s flawed finding that Western Lake Erie is somehow not “impaired” by phosphorus pollution.  In the Toledo area, 500,000 people were without drinking water for three days in 2014 due to toxic blue green algae, which continues to threaten safe clean drinking water, fisheries and ecological health.  This ELPC litigation can be a key Clean Water Act precedent.

  • Winning Against Peabody Energy’s Attempt to Shift Its Environmental Cleanup Costs onto the Public. ELPC took on Peabody Energy, the world’s largest coal mining company and prominent climate change denier.  Peabody filed for bankruptcy and tried to escape its $1.3 billion of mine reclamation responsibilities by “self-bonding” and transferring the risks of those costs onto taxpayers. ELPC successfully intervened before the U.S. Bankruptcy Court, gained precedential rulings, and forced Peabody to buy surety bonds for all of its reclamation obligations as a condition for the Court’s approval of Peabody’s reorganization.  Victory for both taxpayers and the environment.  Flawed “self-bonding” ended, subsidies for coal reduced.
  • Progress Accelerating Solar Energy in the Midwest States.  Solar Energy + Storage is a game changer that can transform the electricity market just as wireless technologies transformed telecommunications and the ways that we live and work.  For energy policies, the “rubber hits the road” before the state public utilities commissions, which can either promote competition spurring innovative new clean technologies or create barriers to new market entrants.

ELPC advocates led the charge to pass the modernized Illinois Renewable Energy Standard that will drive 3,000 megawatts of new solar energy projects and 1,350 megawatts of wind power.  Now, ELPC and a coalition of solar energy businesses and clean energy and community groups are working to make sure that the Illinois Power Agency and Illinois Commerce Commission implement the new law to achieve its full potential benefits for consumers and the environment.

ELPC helped persuade the Michigan Public Service Commission to update the “avoided cost” calculation and increase buyback rates that boost distributed solar energy and cogeneration.  Now, we’re working to replicate that victory in other Midwest states.  In Indiana, Iowa, Minnesota, Ohio and Wisconsin, ELPC is on the offense to accelerate community solar policies, and we’re fighting back against barriers to solar development and subsidies for old coal plants.

  • Protecting the Midwest’s Wild and Natural Places.  ELPC’s top-rate team of public interest environmental litigation attorneys – one of our strongest weapons – are striking back in the courts with our conservation group partners to protect the Driftless Area (WI), Midewin National Tallgrass Prairie (IL), Mississippi River Headwaters (MI) and Sylvania Wilderness (MI).

Thank you for your engagement and your support.  Please consider making a contribution by mail, phone or online to support ELPC’s effective work to seize opportunities for transformational changes and achieve a brighter Midwest future for all.

ELPC’s Founding Vision is Becoming Today’s Sustainability Reality

Support ELPC’s Next 25 Years of Successful Advocacy

Donate Now