The Toledo Blade Op-Ed: ELPC’s Learner and Allies Call for Tougher Action to Rid Lake Erie of Toxic Algae Blooms

Closing Gap Between Talk, Action with Lake
By Howard Learner
Published on July 30, 2016

Tuesday marks two years since nearly 500,000 Toledo-area residents were cut off from safe drinking water because toxic algae contaminated the public water supply.

Predictions of a mild algae bloom this year because of light rainfall, along with Toledo’s water treatment plant upgrades, suggest that there will be no water shutoffs this year. But banking the future of the people around Lake Erie on the whims of the weather is a sucker’s bet.

Last week, the Ohio Environmental Protection Agency placed parts of Lake Erie on its “impaired” list under the Clean Water Act, including where Toledo draws its drinking water, as well as miles of shoreline and areas around the lake islands. The point is to identify severely polluted spots that need special attention. All of western Lake Erie should be designated impaired given the entire basin’s chronic toxic algae problem.

Still, even naming parts of Lake Erie “impaired” acknowledges the blindingly obvious fact the lake’s ability to provide safe drinking water is under threat. The primary reason is also obvious: too much fertilizer and manure run off farm fields, with too few protections to keep water clean before it gets to Lake Erie.

According to a recent study conducted by leading Midwest academic institutions, including OSU, the Maumee River is the main contributor to western Lake Erie’s toxic algae problem, with 85 percent of the river’s pollution stemming from crop fields and livestock farms.

Manure and chemical fertilizer are swept into the Maumee River during storms and snow melts.

There are sensible actions and solutions that can prevent damaging runoffs. Specific farming practices like cover crops and perennials reduce the amount of pollution flowing into the lake and are highly effective when combined with actions like not over-applying manure and fertilizer. Experts in Ohio already work with farmers to encourage their voluntary adoption, as they have done for decades. And yet today, with all of those activities happening, we are still talking about algae bloom “season” as if it’s normal for toxic water to show up every summer.

The dry spring that is buying Lake Erie time this year is an outlier and will become more so as climate change continues to alter our Great Lakes. While Ohio, Michigan, and Ontario have taken positive steps to reduce phosphorus, current actions will not achieve the 40 percent phosphorus reduction by 2025 committed to by their leaders in June, 2015.

Ohio released a draft of its plan to meet this commitment earlier this year. Unfortunately, Ohio’s plan relies too much on voluntary approaches that have been shown to be insufficient across the country, and won’t successfully reduce phosphorus levels to meet the ambitious 2025 goal. A voluntary approach alone will not curb phosphorus pollution from the agricultural industry.

That is why we are glad the state of Ohio has designated at least parts of Lake Erie as impaired — an initial step toward real protections that put safe and clean water first.

We are also calling on state lawmakers and officials to establish new policies that ensure widespread adoption of practices that are verified proper applications of fertilizer and manure and will reduce the amount of phosphorus flowing into nearby rivers and lakes. We also need proactive compliance to confirm that existing rules are being followed.

When our region loses clean, safe drinking water, we put everything at risk. Don’t bank on the weather. Bank on decisions that put clean, safe drinking water first.

Mr. Learner is the executive director at Environmental Law & Policy Center. Co-author Heather Taylor-Miesle is executive director at the Ohio Environmental Council. Co-author Joel Brammeier is president and CEO of Alliance for the Great Lakes.


Learner says no deal from Peabody in Illinois could signal better reclamation deal

Peabody Energy, the largest coal producer in the U.S., reached a deal this week with several states on plans to cover the costs of mine cleanups. Illinois is not among them and environmentalists said that could be a good sign.

The company is filing for bankruptcy and has been allowed to self-bond – essentially a promise to pay for coal site cleanup without actually setting aside the cash. Peabody operates several coal mines in Illinois and according to the state’s attorney general, the energy company could be on the hook for $92 million to reclaim the sites if they’re shut down.

That money should not have to come from Illinois taxpayers, said Howard Learner with the Environmental Law and Policy Center.

“The state of Illinois has not filed a stipulation with Peabody,” Lerner said. “And we’re pleased that Governor Rauner and the Illinois Attorney General are looking harder at this one, and reassessing what’s the fair balance here in light of Peabody’s legal responsibilities.”

Learner said that the deal Peabody reached with Indiana could force the state’s taxpayers to foot about 80 percent of the bill to clean up the company’s coal sites. So far, Illinois has not made a deal with Peabody.

In July, a federal bankruptcy judge allowed groups, including the Environmental Law and Policy Center, to weigh in on the court proceedings. Learner called it a breakthrough decision that could help keep Peabody accountable.

Continue Reading

Des Moines Register: Rate Agreement Moves MidAmerican Closer to $3.6 Billion Wind Project

By Donnelle Eller

MidAmerican Energy, environmental groups and large tech companies reached a rate agreement over the Des Moines-based utility’s plan to invest $3.6 billion in wind energy.

The settlement, which goes to the Iowa Utilities Board for consideration, lowers from 11.5 percent to 11 percent the return MidAmerican would receive from its investment in 2,000 megawatts of wind energy generation.

Among other changes in the settlement, MidAmerican Energy agreed to not sell to other states, utilities or businesses renewable energy credits from the large project when customers choose to claim green energy use.

That’s important to companies like Google, Microsoft and Facebook, all of which have large data centers in Iowa that are large energy users. Environmentalists have pushed big social media, software and internet search companies to reduce their reliance on power generated from fossil fuels.

“We are pleased that all of MidAmerican’s customers will benefit from this settlement,” said Doug Gross, a Des Moines attorney representing Google, Facebook and Microsoft. “We look forward to continuing to work with MidAmerican to ensure that customers have a voice in decisions that affect Iowa’s energy future.”

The project, MidAmerican said, “will bring significant environmental and economic benefits to our customers and the state of Iowa without the need to ask for a rate increase.”

Iowa Environmental Council and Environmental Law & Policy Center, also involved in settlement discussions, applauded the agreement as well.

Keep Reading

Greenwire: ELPC’s Karen Torrent Applauds Surface Transportation Board’s Reversal of Proposed Amtrak “On Time” Definitions

Referee of Amtrak-freight fight reverses ‘on time’ definition
By Ariel Wittenberg

July 28, 2016

The federal government will not have two different definitions for whether Amtrak trains are running “on time,” thanks to a decision today from the Surface Transportation Board.

The STB had public transportation advocates scratching their heads this winter when the small independent agency proposed a different definition for “on time” from what was being used by the Federal Railroad Administration (Greenwire, March 2).

Under the FRA standard, an Amtrak train would be considered on time if it arrived at all stops on the line within 15 minutes of its scheduled arrival time. By contrast, the STB in March proposed only measuring whether a train arrived promptly at the final stop, overlooking any delays at stations along the way.

Today, the STB announced it will use the same definition as the FRA.

The board’s definition of timeliness will affect its adjudication of disputes between Amtrak and freight companies that own the railways used by passenger lines. Amtrak has filed claims with the STB that freight railroads have caused chronic delays on some lines, and the STB definition of on-time performance will be used to determine whether freight railroads should pay damages.

The STB also backed away from a previously proposed policy statement that would have required Amtrak to prove a freight carrier’s disregard for preference is systemic, purposeful and avoidable.

“Reflecting careful consideration of an extensive public and stakeholder response to our most recent passenger rail proposals, these decisions will better position the Board to implement its responsibilities under the Passenger Rail Investment and Improvement Act of 2008,” board Chairman Daniel Elliott said in a statement. “Improved passenger train on-time performance is an important goal, and the Board’s decisions will support that goal by clarifying the trigger for starting a proceeding, while allowing more complex and detailed issues to be resolved in the context of individual cases.”

Public transportation advocates who had accused the STB of both government overreach and bias toward the freight industry this winter celebrated the decision today.

“These two decisions are a major victory for the 84,600 passengers that ride more 300 trains a day,” Environmental Law and Policy Center Federal Legislative Director Karen Torrent wrote in an email.


Midwest Energy News: Biggest Wind Project in Iowa History Back on Track

By Karen Uhlenhuth, Midwest Energy News

The largest proposed wind energy project in Iowa’s history appears to be back on track this week after a tense period when it seemed the deal might fall apart over differences between a utility and large energy users.

On Tuesday, MidAmerican Energy — the utility pursuing the $3.6 billion Wind XI project — reached an accord with several major customers that objected to the plan, including tech giants Google, Microsoft and Facebook and a group of large industrial customers known as the Iowa Business Energy Coalition (IBEC).

MidAmerican President Bill Fehrman said in testimony filed with state regulators that, based on the companies’ objections, he found it “hard to conclude that the Data Centers and IBEC want MidAmerican to develop Wind XI.”

The large customers testified about a range of concerns with the proposal, including MidAmerican’s approach to modeling, the amount of power the utility projected its turbines would produce, the return on equity that MidAmerican was requesting and the treatment of environmental credits resulting from the production of renewable energy.

In the settlement, the customers and MidAmerican agreed to an 11 percent return on equity, slightly less than the 11.5 percent that MidAmerican initially had requested. The customers wanted a 9.5 percent return. And the two sides agreed to assign the environmental benefits of Wind XI to the various classes of customers, based on each class’ kilowatt-hour sales.

Like MidAmerican, the Iowa Environmental Council had expressed concerns that the changes proposed by the industrial customers and data centers could prove fatal to the project.

In a blog post late last month, the council’s energy program director, Nathaniel Baer, wrote: “While no party appears to have explicitly opposed Wind XI, the changes recommended by several interveners, including the data centers and IBEC, could cause Wind XI to be smaller or, at worst, not to be built at all.”

In written testimony, Fehrman said he was surprised that large customers challenged the project, given that they never expressed opinions in any of the 10 previous wind projects developed by MidAmerican.

The objections also appeared to fly in the face of the companies’ history of supporting renewable energy. All three companies have made significant investments in renewable power, including in Iowa, and have indicated they eventually intend to power all of their operations with renewable electricity.

In 2014, Google signed a deal with MidAmerican to purchase 407 megawatts of wind energy to power a new data center in Iowa. A year ago, Facebook announced that it was expanding with a third data center in Altoona, Iowa. The company cited several reasons for the decision, including access to wind energy.

In April, Iowa Gov. Terry Branstad attended the announcement of the 2,000-MW Wind XI installation, which MidAmerican claims is the biggest economic development project in the state’s history.

Wind XI would increase MidAmerican’s substantial wind portfolio to the point that wind would provide energy equal to 85 percent of the electricity sold by the company in a year’s time.

A final decision from state regulators is expected in September. MidAmerican has said it would need to start construction on the project before Dec. 31 in order to receive the maximum amount of federal production tax credits. The credit will gradually decrease over several years, beginning on Jan. 1, 2017.

Keep Reading

Chicago Tribune: ELPC’s Learner Asserts Houbolt Road Bridge Project Affirms Need to Kill Proposed Illiana Tollway

Environmentalists see Houbolt Bridge as Alternative to Illiana Toll Road
By Susan DeMar Lafferty

News of the proposed new Houbolt Road Bridge from Interstate 80 into the CenterPoint Intermodal Center in Joliet and Elwood was viewed as a positive step toward improving safety and relieving the truck traffic that has clogged local roads. However, some feel it should also serve as a signal that the shelved Illiana toll road project is no longer needed.

Environmental groups said the bridge — expected to be open by 2019 — is a key piece in improving the local transportation system, and a cost-effective alternative to the 47-mile Illiana toll road, that was to connect Interstate 55 in Wilmington to Interstate 65 near Lowell, Ind.

The Environmental Law and Policy Center, Sierra Club and Openlands, who have fought against the Illiana toll road in state and federal courts, claim it is a “financial boondoggle,” that would have “disastrous impacts” on Midewin National Tallgrass Prairie, Abraham Lincoln National Cemetery — both located along Route 53 — and other natural open spaces in that area, such as the Des Plaines River Conservation Area.

In a July 11 press conference, Gov. Bruce Rauner said the CenterPoint Intermodal Center in Joliet and Elwood, would pay $170 million to construct the new bridge and the state would pay $21 million to widen Houbolt to four lanes and improve the interchange at I-80 and Houbolt — money that Rauner said is in the budget.

Officials hope it will offer relief to the heavy truck traffic that has choked Route 53, interfered with funeral processions at the national cemetery, caused traffic accidents and prompted the Village of Elwood to launch a web-based public safety campaign,

The bridge project makes it “all the more clear” that the Illiana should be brought to its “well-deserved end,” said Howard Learner, executive director of the Environmental Law and Policy Center. “I hope Rauner and IDOT (Illinois Department of Transportation) will bring it to an end once and for all.”


Greenwire: ELPC & Allies Tell U.S. Dept Of Transportation Driverless Cars Should Include Electric Vehicles

All driverless cars should be electric, greens tell DOT
By Ariel Wittenberg

Published: Wednesday, July 13, 2016

Environmentalists are urging the Obama administration to use self-driving cars as vehicles for greening U.S. transportation.

The Natural Resources Defense Council, Sierra Club, Environmental Law & Policy Center and Southern Environmental Law Center asked the Department of Transportation and U.S. EPA to “evaluate ways for autonomous vehicle fleets to accelerate the transition to zero emissions, electric-drive vehicles and allow for further integration of renewable electricity.”

“While some autonomous vehicle pilot projects involve electric-drive vehicles, automakers will also deploy technologies to vehicles that rely on fossil fuels,” the groups wrote. “Exploring zero emission options for autonomous vehicles will help ensure that the technology reduces pollution.”

The push for electrification of autonomous vehicles comes in a letter expressing concern that DOT has focused on the safety implications of driverless cars to the exclusion of considering other aspects of the technology.

Under Transportation Secretary Anthony Foxx, DOT has been bullish about getting out in front of emerging autonomous-vehicle technology and has begun taking steps to determine how best to regulate it. The National Highway Traffic Safety Administration released an assessment in March of how current standards would consider autonomous vehicles, a move many consider a first step toward rulemaking (E&ENews PM, March 11).

While the environmental groups said they agree safety should be the top priority in regulating autonomous vehicles, they argue that DOT should not have tunnel vision when it comes to the technology.

By leaving regulations to the National Highway Transportation Safety Administration, the groups write, DOT “may be missing some of the bigger policy concerns that must be taken into account before any deployment of these technologies.”

The letter asks DOT to work with EPA and the National Economic Council to “carefully consider the potential greenhouse gas emissions and other environmental impacts — both benefits and detriments — that result from accelerating autonomous vehicles.”

Environmentalists have applauded companies like Google that are using electric cars in their pilot programs (Greenwire, Feb. 16).

The group’s letter describes the possibility that shared autonomous vehicles could help ease congestion, but it also warns that autonomous vehicles could have the opposite effect, attracting passengers to take longer trips more frequently, crowding roadways and increasing urban sprawl.

“Many potential impacts of autonomous vehicles are unclear, including impacts on vehicle miles traveled, vehicle emissions, public transit, and land use, which in turn can have significant positive or negative impacts upon our environment,” the groups wrote. “We urge USDOT to carefully consider the wide variety of potential impacts that can arise from this valuable new technology.”

The letter also asks DOT and EPA to study how different rates of autonomous vehicle deployment could affect traffic congestion and how using autonomous vehicles for freight delivery could help limit emissions nationwide.


Midwest Energy News: ELPC’s Mandelbaum Discusses Open Door to More Net Metering

Net metering will be available to more electricity customers in Iowa as a result of a decision made on Tuesday by state regulators.

As part of a long-running discussion about distributed generation, the Iowa Utilities Board ruled that the state’s two major utilities – MidAmerican and Alliant Energy – must increase their net metering cap from 500 kilowatts to 1 megawatt. Also, the new tariffs will have to make net metering available to all classes of customers but will change some rules for compensation.

“They’ve left the structure of net metering in place, and focused on how to expand that in a very narrow way that is on the whole positive,” said Josh Mandelbaum, an attorney in Des Moines with the Environmental Law & Policy Center. “They didn’t invite any of the changes you’ve seen in the utility pilot project. They could have, but they kept the pilot projects separate, and to me, that is a positive.”

As part of the board’s distributed-generation docket, the board last October asked MidAmerican and Alliant to submit pilot projects to encourage the development of distributed generation in the state. For the most part, the utilities did the opposite: proposing rate changes that would penalize solar customers.

The new rules regarding net metering will be adopted on a temporary basis. At the end of three years, the board will assess the experiment and decide whether to make the changes permanent. Customers of the two utilities who currently have solar panels can choose to continue in their current net metering arrangement, or can opt to try the new net metering tariff. Those choosing the new tariff may not return to the former tariff.

Any customer installing solar panels after the new tariffs are adopted will be required to operate under the new rules. Under existing rules, net meterers can roll over excess credits indefinitely, to be applied against future bills. There is no option for trading credits for cash.

The new tariffs will institute a yearly true-up. Early in the year, excess credits will be removed from the books, compensated at the avoided-cost rate and the proceeds divided in two: half will go to a utility fund to aid low-income customers, and half will return to the customer.

Although he praised the board’s directive overall, Mandelbaum said the cashout piece “could potentially be losses and gains. I don’t think the cashout is going to make much difference on most projects, but there is some potential for it to impact some projects.”

The ruling will eliminate any incentive a solar customer might have felt to overproduce. The increased cap of 1 megawatt will apply only up to 100 percent of the solar customer’s load. And while the new rules will extend net metering to a couple of groups of customers who are currently excluded, the rules stipulate that each customer’s generation will only offset the energy charge and will not apply to demand or customer charges.

One class that now will gain access is customers who obtain solar power through third-party power-purchase agreements or lease arrangements. After a customer filed a complaint, Alliant changed its policy a year ago to allow third-party customers – generally public and non-profit entities – to net meter. While Alliant extended net metering to that group, MidAmerican did not, according to Mandelbaum. The ruling made yesterday requires that MidAmerican adopt the same standard.

The other class that now will be able to net meter is the large general service category, such as manufacturing plants and wastewater-treatment facilities. Barry Shear, a solar developer in Iowa, went to the utilities board because Alliant’s policy stymied one city’s attempt to install a solar array at its water treatment plant.

Although the new rules will allow large general service customers to net meter, the presence of a large demand fee as part of their bill may continue to interfere with the economics of net metering.

The board’s Tuesday ruling did something else: it seemed to bypass much of the pilot projects that Alliant and MidAmerican submitted in March. Although the board instructed the utilities to devise pilot projects that would experiment with ways to expand rooftop solar, clean-energy supporters in the state mostly viewed the pilots as designed to discourage people from generating their own power. Alliant proposed paying less to solar customers, and MidAmerican suggested imposing a demand charge on them. Both of them, however, also said they wanted to experiment with community solar.

The message in Tuesday’s ruling, as Mandelbaum sees it, was, “You can continue working on community solar projects,” he said, “The rate-design pilots – it essentially rejects those.”

Keep Reading

Cedar Rapids Gazette: ELPC’s Mandelbaum Warns Proposed Rule Changes Will Weaken Iowa’s Water Quality Standards

Iowa Panel Weighs Changes to Clean-water Rules
Industry, Municipal Groups at Odds with Environmentalists Over Issue

By Orlan Love

The Iowa Department of Natural Resources’s Environmental Protection Commission is considering proposed changes to rules that govern anti-degradation standards included in the state’s clean-water regulations.

Groups representing municipal governments and industries, who proposed the changes, say those changes are needed to clarify the state’s anti-degradation rules after a court ruling in March created uncertainty.
Environmental groups say the changes would undermine a recent Iowa District Court ruling, weaken water quality protections and undercut the state’s Nutrient Reduction Strategy.

That district court ruling in a case involving the city of Clarion leaves industry members “in limbo regarding what is now required in an anti-degradation review, and potentially facing a much more complex and costly anti-degradation process,” Myron Linn, public policy counsel for the Iowa Association of Business and Industry, said in written comments to the commission.

Adopted in 2010, Iowa’s anti-degradation standards, an augmentation of the Clean Water Act, were designed to prevent unnecessary new water pollution. The Iowa Supreme Court upheld the rules in 2014 after a Farm Bureau challenge.


Detroit News: ELPC’s Learner Questions Why Mich. AG Schuette Continues Lawsuits Over Federal Mercury Rules

Snyder bows out as Schuette fights EPA pollution rules
By Chad Livengood

Lansing — Attorney General Bill Schuette continues to wage a court battle over the Environmental Protection Agency’s mercury pollution controls for coal-fired power plants despite compliance by Michigan’s biggest utility companies and Gov. Rick Snyder disassociating himself with Schuette’s lawsuit.

Schuette has waged a three-year legal battle with the EPA to block implementation of the Obama administration’s Mercury & Air Toxins Standards with limited success.

In mid-June, the U.S. Supreme Court declined to consider Schuette’s latest challenge to the EPA’s rules requiring power plants to reduce mercury emissions. Last Friday, Schuette filed a new legal action in the U.S. Court of Appeals in the District of Columbia challenging an amendment the EPA made to its rules in April.

Schuette said Wednesday he’s fighting the way President Barack Obama’s EPA went around Congress to push the emissions restrictions onto states.

“This is a constitutional issue about does the administration have follow the Constitution or do you do things and bypass the Constitution with the issuance of rules and regulations,” said Schuette, a former congressman. “That’s what this is about. I think the Constitution is important. I’m not going to apologize for it.”

Attorneys general from 14 other states, including Ohio and Wisconsin, signed onto Schuette’s Friday court filing.

Snyder took his name off the latest lawsuit, meaning Schuette is no longer suing on behalf of the State of Michigan, but just on behalf of the “People of Michigan.”

“We disassociated with that,” Snyder spokeswoman Anna Heaton said.


  • Take Action
  • Advocacy to Protect the Midwest’s Environment and Natural Heritage

    ELPC Action Fund creates policy and political change to achieve clean energy, clean transportation and climate change solutions in the Midwest and Great Plains.