Judge John Adams of the federal court in Akron has taken an unusual step. He has hired what amounts to a legal adviser to help him sort through the decision of whether to approve a consent decree involving the updating and repair of the city’s combined sewer system.
The judge has made plain the burden he feels from the volume and complexity of the record, the litigation into its fifth year. More than anything, he has expressed his utter distrust of the parties, the city of Akron, the federal Environmental Protection Agency and the Ohio EPA. Read his words, and you are invited to think that the three are partners in a dark deed. He appears especially frustrated with the federal EPA, citing its failure to follow the required guidance in crafting the decree.
At times, the judge appears to lose sight of the dynamic at work, the city and the agencies actually adversaries, having spent long hours wrangling in pursuit of an agreement on how to move forward. He seems more the advocate, armed with a point of view and pressing his cause, in this case, that the Cuyahoga Valley National Park is the distinguishing factor, requiring an extraordinary level of care.
There is much to the view. To his credit, the judge has pushed the parties to deliver a better plan for limiting sewer overflows into the Cuyahoga River and related waters. Yet it also is true that the federal EPA, in particular, hardly has been a soft touch. It is the regulator, bringing its considerable expertise and experience in these matters, many cities and regions facing the same challenge.
The standard the judge has set is a decree that is “fair, adequate and reasonable,” plus “consistent with the public interest.” Know that the agreement now prohibits any overflows during normal years, the city spending roughly $870 million to improve the system, the effort completed in 15 years. The timetable has been accelerated. The cost has increased, a plan in the works a decade ago carrying a tab of $376 million.
Ideally, the work would be completed sooner, the judge with his eye on 10 years. Worth noting is that five years in such environmental regulation and litigation amount to the blink of an eye. More than two years have passed since the judge rejected the first version of a consent decree.
The judge appears convinced the financial burden isn’t as severe as Akron officials argue. Mayor Don Plusquellic told the City Council last week that sewer rates are projected to triple, from an average $46 per month to $150. In theory, the city could tap another revenue source, but the alternatives aren’t as available as the judge may think.
The measure of “fair, adequate and reasonable” surely leaves room for factoring the financial pressures facing Akron and others. The federal government won’t put up significant money. Neither will the state. If anything, they have been squeezing cities, counties and townships, narrowing revenue streams. State lawmakers recently eliminated the estate tax that flowed mostly to local governments.
The city of Akron has accepted its fate, moving ahead with the plan approved by the two EPAs. The hope is, the judge, with the assistance of his expert, will see the totality of the circumstances, including the unique element of an urban park, far removed from the likes of the Rocky, Cascade and Great Smoky mountains. He has prevailed. The city and the agencies have a plan that will improve dramatically the park environment.
Let’s officially set it in motion.