Howard Learner

Toledo Blade: Judge Slams EPA for Lake Erie Impairment Controversy

April 11, 2018
Judge Slams EPA Over Lake Erie Impairment Controversy
By Tom Henry

In a decision hailed by environmental advocates as a major victory for clean drinking water, Senior U.S. District Judge James G. Carr accused the U.S. Environmental Protection Agency and the Ohio Environmental Protection Agency of botching the Lake Erie impairment controversy and, at one point, went so far as to say the federal agency demonstrated a “whiff of bad faith.”

The judge’s 25-page order, filed in Toledo on Wednesday night, gives the U.S. EPA 30 days to reconsider its failure to challenge the Ohio EPA’s controversial Oct. 20, 2016, finding that the open water of western Lake Erie did not meet criteria the state agency believed was necessary under the Clean Water Act to be designated as impaired.

An algae bloom from Lake Erie appears in the boat basin at International Park in Toledo in 2017.

The U.S. EPA accepted the state’s finding last year, first without formally acting on it.

Then, two days after it was sued by the Chicago-based Environmental Law & Policy Center and Toledo-based Advocates for a Clean Lake Erie last May, the federal agency passed the report through its administrative process but said it was deferring to the state of Ohio’s judgment not to list the open water as impaired.

The two groups sued, claiming the U.S. EPA missed an important deadline and failed to make a final decision one way or the other. In his ruling, Judge Carr agreed that’s not good enough and remanded the case back to the federal agency.

Although the Kasich administration finally did an about-face after years of resistance on behalf of agriculture by declaring the western basin impaired on March 22, the lawsuit remains active because it is focused on the U.S. EPA’s actions as a regulator. Judge Carr said he will continue to “retain jurisdiction over this suit and all matters affecting it.”

Lake Erie’s western basin has been plagued by chronic bouts of algae toxic enough to make people sick or possibly even die since 1995. The impairment controversy has drawn a lot of attention, because the designation allows for unprecedented controls on sources of algae-forming pollution, which today is primarily agricultural runoff.

“Ohio’s persistent failures came to a head in 2016,” according to Judge Carr’s order, which said the state’s reluctance to declare western Lake Erie as impaired goes back to at least 2012. That’s two years before Toledo’s high-profile 2014 water crisis, when the city’s tap water was so fouled by an algal toxin that the metro area’s 500,000 residents were told by health officials to avoid it for almost three days.

The state agency could have made the declaration in biennial reports submitted in 2012, 2014, or 2016, but its “rebuke put the U.S. EPA in a difficult position,” the judge wrote.

While stating the federal agency “had, in effect, given Ohio a pass,” the judge also wrote that Ohio ignored its “opportunity and its duties” as a regulator. Judge Carr further stated that the U.S. EPA compounded Ohio’s inaction with more inaction by failing to act on the state’s 2016 report for nearly five months. The judge wrote that lack of oversight occurred despite Ohio’s “unmistakable failure to do what it promised the U.S. EPA it would do after 2014.”

He seemed particularly upset by the U.S. EPA waiting until a federal holiday — Jan. 15, Martin Luther King, Jr., Day and one day before his Jan. 16 deadline for motions — to tell the Ohio EPA in writing it was having second thoughts about the state’s refusal up to that point to declare western Lake Erie impaired.

Judge Carr said he was never notified — formally or informally — by the U.S. EPA, and heard about the new development in a roundabout way, from a clerk who passed down word from the ELPC.

“Defendants’ oversight amplifies the whiff of bad faith arising from the timing of its inexplicably delayed notice to plaintiffs’ counsel,” he wrote.

The judge also said he recognizes that farm runoff is much more complicated than sewage discharges and other point sources. In his decision, he noted that U.S. EPA counsel stated during oral arguments that meaningful reductions in farm runoff could take eight to 23 years.

Howard Learner, ELPC executive director, said he was impressed by the tone of Judge Carr’s remarks.

He said the judge called out both agencies for “bad faith and procedural maneuverings” and said the Ohio EPA “has dodged and weaved its statutory obligations over the years.”

“The judge, in effect, is saying ‘Quit playing games,’” Mr. Learner said. “This is a good day for the public and a good day for safe, clean drinking water.”

Mike Ferner, ACLE founder, said he hopes Judge Carr retains jurisdiction for a long time.

The U.S. EPA and the Ohio EPA declined comment. Both agencies said they are still reviewing the order.

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Wall Street Journal: Researchers Race to Thwart Toxic Algae Outbreaks

April 7, 2018
Researchers Race to Thwart Toxic Algae Outbreaks
By Kris Maher

Ed Weinberg thinks he has developed the best way to stop the toxic blooms of blue-green algae that have been fouling bodies of water from the Florida Everglades to the Great Lakes and beyond.

The algae feed on phosphorus from farms and wastewater treatment plants that makes its way into rivers and lakes. Mr. Weinberg’s solution deploys tiny beads of engineered resin that can absorb the mineral from water and extract it for reuse.

“It’s simple yet elegant chemistry,” said Mr. Weinberg, a chemical engineer who is among the finalists in a $10 million competition that is one of a number of both public and private efforts to solve a growing problem in U.S. waterways.

Researchers are racing to find solutions to outbreaks of blue-green algae that are increasing in frequency and severity. Carpets of stinking algae have sickened people and animals and hurt the fishing and tourism industries.

In 2014, the drinking water for nearly half a million people in Toledo, Ohio, was contaminated by the toxin microcystin produced by the algae.

“When you’re dealing with an issue as large and complex as we are right now, the more solutions the better,” said Christopher Winslow, who coordinates federal- and state-funded research into algal blooms at Ohio State University. He isn’t involved in the competition, which is privately run.

So far, research has been focused in four main areas, Mr. Winslow said: removing toxins from water, understanding how toxins affect the human body, understanding how blooms grow and preventing blooms in the first place.

Stopping the blooms is taking on more urgency. In March, the Environmental Protection Agency announced a plan to meet a goal of cutting phosphorus entering Lake Erie by 40% through voluntary efforts by 2025. Also last month, Ohio declared the shallow western basin of Lake Erie “impaired,” a step toward tighter regulations of phosphorus from farms and wastewater plants.

Algal blooms in Lake Erie were a problem in the 1960s. The blooms faded after regulations were implemented that required wastewater treatment plants to cut phosphorus.

But in the mid-1990s the blooms returned, and they have been surging more recently. Today, scientists point to farm runoff as a major cause of blooms.

For Lake Erie, the Maumee and Sandusky rivers are the greatest contributors of phosphorus, with 87% of phosphorus coming from sources that include farms. Environmental groups want tighter limits on use of fertilizer, which typically contains phosphorus.

“It’s time for the foot-dragging to come to an end,” said Howard Learner, president of the Environmental Law & Policy Center, based in Chicago, which sued the state of Ohio in federal court last year, arguing it should declare Lake Erie impaired. A ruling in that case is pending. “We know what causes it. It’s manure and excess fertilizer.”

Joe Cornely, a spokesman for the Ohio Farm Bureau Federation, said farmers are already taking steps to manage fertilizer more effectively. “We recognize that more needs to be done,” he said. “Our approach is, as soon as we figure out something that we know is going to work, let’s take that step.”

Researchers are exploring a variety of solutions. Some are working on ways to remove phosphorus from manure directly. Others are testing materials that could be inserted in drainage tiles under the soil on farms to remove phosphorus before it reaches rivers.

Mr. Weinberg, a 66-year-old from Richboro, Pa., outside Philadelphia, wanted a site with plenty of manure to test his technology last fall. He found a horse farm in Maryland with a pond thick with algae. He filled burlap sacks with his beads and put them in open crates, creating a makeshift filter in a drainage creek that flowed into the Chesapeake Bay.

He said he was able to replicate his lab results for removing phosphorus, and said there is no reason his technology couldn’t be applied at commercial farms in Ohio where phosphorus eventually makes its way into Lake Erie.

The competition in which he is a finalist is offering a $10 million prize for the best phosphorus-removal technology. It is sponsored by the nonprofit Everglades Foundation and the Scotts Miracle-Gro Foundation, a charitable organization affiliated with the fertilizer company.

The numbers of teams competing have been winnowed from more than 100 from 13 countries, to 10 from the U.S., Canada, the Netherlands and China, according to officials working on the competition.

Huffington Post: Howard Learner on FEMA Funding in Wake of Hurricane Harvey

Hurricane Harvey Should Be A Wake-Up Call To Trump’s Disaster Relief Budget
By Howard Learner

August 27, 2017

While President Trump declared Texas an emergency disaster area from the Hurricane Harvey impacts, the Trump Administration’s FY 2018 budget blueprint for the Federal Emergency Management Agency (FEMA) is “penny wise and pound foolish”:

· Cuts $667 million from FEMA state and local grant funding for programs that include disaster preparedness and response. For example: The Homeland Security Grant Program “plays an important role in the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal of a secure and resilient Nation.”

· Cuts about $90 million from FEMA’s Pre-Disaster Mitigation Grant Program funding to local communities. In other words, reducing funding for prevention and resilience actions that can mitigate harms to people and property to better withstand the impact of hurricanes and coastal storms. And save money by preventing more damages later. This program is authorized under Section 203 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act in order to “reduce overall risk to the population and structures from future hazard events, while also reducing reliance on Federal funding in future disasters.”

· Eliminates all $190 million of funding for the National Flood Insurance Program’s Flood Hazard Mapping and Risk Analysis Program efforts to improve and redraw the nation’s flood maps to align with current topological and hydrological realities. That’s important for communities to better understand climate risks and take protective measures that reduce harms and save money in the future.

It’s been reported that out of all 50 states, Texas, California and Oklahoma have the most disaster declarations from FEMA. This is an area of strong potential bipartisan policy alignment, especially in the Midwest and Great Lakes states.

Let’s see whether the Congressional debates on funding for Texas disaster relief lead to some common sense budget solutions focused on better prevention and resilience actions and better disaster preparedness and relief for people and our communities.

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ELPC Executive Director Howard Learner Named to Crain’s “Who’s Who in Chicago Business”

Among the trailblazers profiled in Crain’s Chicago Business’ annual “Who’s Who in Chicago Business” is ELPC Executive Director Howard Learner.

“Who’s Who” comprises a comprehensive directory of 600+ Chicago leaders, offering information about each person’s business and professional endeavors as well as civic engagements. The list is divided by sector, and Learner appears alongside 33 non-profit standouts.

Learner’s profile includes his work with numerous environmental and legal organizations, including the U.S. Environmental Protection Agency and the Environmental Law Institute, as well as his service to organizations like Citizens Action of Illinois and the Royal Society for the Encouragement of Arts, Manufacture and Commerce. Below is the profile that appears in the September 4th issue of Crain’s Chicago Business.

Howard_250x330dHoward A. Learner

President, Executive Director

Environmental Law & Policy Center, Chicago

Age: 62

Business: Environmental progress, economic development advocacy organization

Professional: Economic Club; Chicago Bar Association; Chicago Council of Lawyers; Environmental Law Institute

Civic: Leadership Fellows Association; Forest Preserves Foundation; Citizens Action of Illinois; Friends of Israel’s Environment; Royal Society for the Encouragement of Arts, Manufacturers & Commerce

Undergraduate: University of Michigan

Graduate: Harvard University

St. Louis Post-Dispatch: ELPC’s Howard Learner Talks Peabody’s End to Self-Bonding

Peabody Emerges From Bankruptcy; Stock Trading Resumes Tuesday
April 4, 2017
By Bryce Gray

With $5 billion less in debt and a new stock set to begin trading, Peabody Energy emerged from Chapter 11 bankruptcy Monday, 10 days shy of one year after starting the reorganization process.

The shares will be listed under the ticker BTU — a reference to the British thermal unit, used to measure the potency of energy sources.

“We believe that ‘The New BTU’ is well positioned to create substantial value for shareholders and other stakeholders over time,” Peabody President and CEO Glenn Kellow said in a statement. “Peabody is the only global pure-play coal investment, and we have the scale, quality of assets and people, and diversity of geography and products to be highly competitive.”

When it filed for Chapter 11 last April, St. Louis-based Peabody was one of many bankruptcies in the coal industry. Competition from cheap natural gas had driven down coal prices, but Peabody officials insisted that a badly timed $5.2 billion acquisition of Australian mines in 2011 was a primary reason the company had to file Chapter 11.

“Investors had said to us, we didn’t have an operating problem but a debt problem,” said Vic Svec, a Peabody spokesman.

Now, company executives say the geographic reach of the company’s assets positions it to serve both the U.S. and burgeoning Asian economies.

“Coal remains an essential part of the energy mix, and Peabody is the largest U.S. coal producer while our Australian platform has access to the higher-growth Asia-Pacific region,” Kellow said.

Peabody did face some sticking points in its reorganization process.

Environmental groups voiced concerns about the company’s practice of self-bonding instead of posting a cash bond to cover future cleanup costs. Those groups were appeased when Peabody agreed to replace $1.2 billion in self-bonds with surety bonds.

“This is bringing self-bonding to an end for the world’s largest coal company,” said Howard Learner, executive director of the Environmental Law & Policy Center. “That sends a message across the industry.”

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ELPC Statement on Proposed Rollback of Fuel Economy Standards

FOR IMMEDIATE RELEASE

March 15, 2017

Contact:

Judith Nemes

David Jakubiak

Trump Administration’s Rollback of Fuel Economy Standards Is Misguided

Rolling back common sense fuel efficiency standards will cost people more at the gas pump, increase pollution, and reduce America’s technological innovation leadership and global competitiveness

STATEMENT BY HOWARD A. LEARNER
EXECUTIVE DIRECTOR, ENVIRONMENTAL LAW & POLICY CENTER

Howard Learner, Executive Director of the Environmental Law & Policy Center, said in response to President Trump’s announcement that his administration will reverse the schedule in place for U.S. automakers to adopt improved fuel economy and pollution reduction standards by 2025:

“The misguided rollback of the CAFE fuel economy standards moves America in the wrong direction. The Trump rollback will force consumers to pump gas more often, result in more pollution that harms public health, and weaken American technological innovation leadership and competitiveness. The U.S. will import more foreign oil, which weakens our national security.”

“The Phase 2 CAFE fuel efficiency standards drive automakers to accelerate technological innovation and supports American manufacturing jobs. This is smart, common sense policy that has been adopted after many technical studies and input from a wide range of stakeholders. The United States should not voluntarily cede our technology innovation leadership to Asian and European automakers.”

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The State Journal-Register: Learner Says ELPC will Stand Up for Citizens’ Rights to Clean Air and Water

State_Journal-Register_logoEnvironmentalists Preparing to Battle Trump, GOP in Court
January 29, 2017
By Tammy Webber and John Flesher

CHICAGO – The night before Donald Trump’s inauguration, five environmental lawyers filed a federal court brief defending an Obama administration clean-water rule that the new president and his Republican allies have targeted for elimination, considering it burdensome to landowners.

The move served as a warning that environmentalists, facing a hostile administration and a Republican-dominated Congress, are prepared to battle in court against what they fear will be a wave of unfavorable policies concerning climate change, wildlife protection, federal lands and pollution.

Advocacy groups nationwide are hiring more staff lawyers. They’re coordinating with private attorneys and firms that have volunteered to help. They’re reviewing statutes, setting priorities and seeking donations.

“It’s going to be all-out war,” said Vermont Law School Professor Patrick Parenteau. “If you’re an environmentalist or conservationist, this is indeed a scary time.”

Trump’s first week in office only heightened their anxieties. He moved to resume construction of the Keystone XL and Dakota Access pipelines that the Obama administration had halted, while signaling intentions to abandon his predecessor’s fight against global warming, vastly expand oil and gas drilling on public lands and slash the Environmental Protection Agency’s budget.

GOP lawmakers, meanwhile, introduced measures to overturn a new Interior Department rule barring coal mining companies from damaging streams and to remove some wolves from the endangered species list.

“They’ve wasted no time in doing bad things,” said Pat Gallagher, director of the Sierra Club’s 50-member legal team, which he said is likely to grow as environmentalists increasingly regard the courts as their best option, even though success there is far from certain.

The Department of Justice, which represents the federal government in environmental lawsuits, declined to comment, while the White House did not respond to emails seeking comment. Doug Ericksen, communications director for Trump’s transition team at EPA, said of the environmentalists that he’s “not sure what they think they’re preparing for” but suspects they are stoking fear of Trump as a fundraising tool.

“They’re more concerned about raising money than protecting the environment,” Ericksen said.

Jim Burling, litigation director for the Pacific Legal Foundation, a nonprofit property rights group that sues regulators on behalf of businesses and landowners, also contended environmental groups were exaggerating the Trump administration’s threat for political and financial gain.

The government bureaucracy is entrenched, Burling said, and, “who happens to occupy the White House hasn’t made that much difference.”

Environmentalists say their fears are justified by the new administration’s antagonism toward government’s role in keeping air and water clean and the planet from overheating.

Donations began increasing after Trump’s election, “even before the fundraising letters were sent” asking for support to fight the administration’s actions, said David Goldston, government affairs director at the Natural Resources Defense Council.

Earthjustice, which has represented the Standing Rock Sioux tribe in its fight against the Dakota Access Pipeline, has about 100 staff attorneys and plans to bring more aboard, said Tim Preso, who manages the group’s Northern Rockies office.

The Chicago-based Environmental Law & Policy Center is adding four attorneys to its pre-election staff of 18 and is coordinating with more than a dozen outside attorneys who would file citizen suits against polluters for free if agencies fail to enforce existing rules, said Executive Director Howard Learner.

“We cannot fully substitute and replace the EPA doing its job,” Learner said. “But on the other hand, we’re not going to default to zero if the EPA steps backward when it comes to clean air and clean water enforcement.”

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Greenwire: ELPC’s Learner Says Peabody Energy Reorganization Plan Dodges Self-Bonding Issue that Risks Shifting Mine Reclamation Costs to Communities

Greenwire

Peabody Sends Chapter 11 Plan to Bankruptcy Judge
December 23, 2016
By Dylan Brown

The nation’s top coal producer published yesterday its plan for escaping bankruptcy.

Peabody Energy Corp. delivered its Chapter 11 reorganization plan to Judge Barry Schermer of the U.S. Bankruptcy Court for the Eastern District of Missouri. The plan needs Schermer’s approval.

St. Louis-based Peabody joined many of its competitors in bankruptcy earlier this year in the wake of an unprecedented industry slump caused by plummeting coal prices, withering foreign demand, skyrocketing domestic natural gas production and increased regulation (Greenwire, April 13).

Industry debt is also a factor. Much of Peabody’s $10 billion or so debt stems from its 2011 expansion into Australia with the $5.2 billion purchase of Macarthur Coal Ltd.

In August, Peabody requested more time to draw up a restructuring plan, but President and CEO Glenn Kellow said his company and its creditors have now reached “a proposal that has broad consensus, maximizes the value of the enterprise and paves the way for a sustainable future.”

“Eight months ago, we set out on a path to strengthen the balance sheet and position the company for long-term success amid historically challenged coal industry fundamentals,” Kellow said in a statement.

According to Peabody, the plan would reduce its debt by more than $5 billion, lower regular payments and offer up $750 million in stock “backstopped” by a third party along with the issuance of new common stock to appease certain creditors. The company is also selling the Metropolitan mine in Australia if the Australian Competition and Consumer Commission approves the deal.

Peabody expects to emerge with “substantial liquidity to satisfy near and long-term needs” as a public company. It is also preparing updated financial statements that show its recent performance

“While we still have outstanding issues to resolve prior to emergence, this plan demonstrates that Peabody retains an unmatched asset base, leading U.S. platform, substantial Australian thermal and metallurgical coal business, and a team of skilled employees,” Kellow said.

Peabody’s critics are skeptical of the plan’s handling of mine cleanups and $16.2 million in bonuses that the court approved for executives who hit performance targets.

Peabody has more than $1 billion in self-bonds, corporate promises that fulfill mine cleanup insurance requirements — more than than any other company (E&E News PM, Aug. 16).

“The company’s first proposed reorganization plan dodges the issue and unfairly risks shifting the costs for Peabody’s environmental cleanup responsibilities onto the public,” Howard Learner, an attorney for the Environmental Law & Policy Center, said in a statement. “A ‘feasible’ reorganization plan for Peabody to emerge from bankruptcy should not include continued self-bonding of mine reclamation costs.”

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Midwest Energy News: Learner Calls IL, Mich., & Ohio New Clean Energy Bills Passed a “mixed bag”

Midwest-Energy-News-LogoA ‘Mixed Bag’ for Clean Energy as Midwest Legislatures Close Out 2016
December 20, 2016
By Andy Balaskovitz

Lawmakers in three Midwest legislatures closed out their 2016 lame-duck sessions with plans to both expand as well as slow clean energy development. The proposals in Ohio, Michigan and Illinois came under three Republican governors and, aside from Illinois, Republican-held legislatures.

In each case, major utilities played significant roles — either prominently lobbying or behind the scenes — in getting policies adopted in their favor.

In Ohio, this meant a concerted effort toward what critics say further weakens the state’s renewable energy and efficiency standards. On Dec. 8, lawmakers sent a bill to Gov. John Kasich that makes those standards voluntary for the next two years. Advocates and others have since called on Kasich to veto the plan.

However, a different story played out in Illinois and Michigan, where clean energy was just part of broader statewide energy plans. In Illinois, Exelon pushed lawmakers for subsidies that would help keep open two uneconomic nuclear plants there at $2.4 billion over the next 10 years. Clean energy advocates supported the legislation, though, because it would update the state’s renewable energy standard in a way that will lead to more in-state solar and wind investment. In the past, Exelon had opposed such a measure out of fear that renewables would compete with its nuclear fleet.

In Michigan, major utilities DTE Energy and Consumers Energy supported a two-bill package that Gov. Rick Snyder is expected to sign that expands renewable and efficiency standards. But for the past two years, the state’s partially deregulated electricity market was in the crosshairs, with major utilities leading a push that critics said would have ended the state’s electric choice market. In the end, Michigan’s bills received widespread support from both sides of the electric choice debate as well as from clean energy groups.

“It’s plainly a mixed bag. Illinois and Michigan are stepping up to accelerate solar energy and wind power in ways that help build jobs, economic growth and environmental progress for the future,” said Howard Learner, executive director of the Environmental Law and Policy Center.

“Unfortunately Ohio is taking a step back by reverting to voluntary standards and taking other actions that weaken energy efficiency in the state. … We hope Gov. Kasich will step up and show leadership and put Ohio on a much stronger path for clean energy development.”

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