Justia U.S. 7th Circuit Court of Appeals Opinion SummariesArticles Posted in Environmental Law
Menominee Indian Tribe of Wisconsin v. Environmental Protection Agency
The Menominee River runs between Wisconsin and Michigan’s Upper Peninsula. According to its origin story, the Menominee Indian Tribe came into existence along the River's banks thousands of years ago. This birthplace contains artifacts and sacred sites of historic and cultural importance to the Tribe. The Tribe learned that Aquila planned a mining project alongside the River, close to Wisconsin’s northeast border. Aquila obtained Michigan permits. The Tribe contacted the Environmental Protection Agency and Army Corps of Engineers asking for reconsideration of a 1984 decision to allow Michigan, instead of the federal government, to issue permits under the Clean Water Act, 33 U.S.C. 1344. The agencies responded that Michigan would decide whether to issue a “dredge-and-fill” permit to authorize Aquila’s project. The Tribe commenced an administrative proceeding in Michigan and filed suit.The district court dismissed the complaint on the ground that it did not challenge any final action taken by the EPA or Army Corps. The Seventh Circuit affirmed while expressing “reservations about how the federal agencies responded to the Tribe’s concerns.” The court noted that the agency letters did not reflect any final agency decisions and that the Tribe can receive a full and fair review in a Michigan court. The Preservation Act does not require the agencies to consult with the Tribe about the project but applies only to undertakings that are “[f]ederal or federally assisted.” View "Menominee Indian Tribe of Wisconsin v. Environmental Protection Agency" on Justia Law
Posted in: Environmental Law, Native American Law
Sauk Prairie Conservation Alliance v. United States Department of the Interior
Years of heavy industrial use at Wisconsin's Badger Army Ammunition Plant contaminated the soil and groundwater with asbestos, lead paint, PCBs, and oil. Operations ceased in 1975. Remediation has yielded thousands of acres suitable for recreational use. The National Park Service donated 3,000 acres to the Wisconsin Department of Natural Resources. An environmental group sued to halt three activities at the Sauk Prairie Recreation Area: dog training for hunting, off-road motorcycle riding, and helicopter drills by the Wisconsin National Guard citing the Property and Administrative Services Act, which controls deeds issued through the Federal Land to Parks Program, 40 U.S.C. 550. The Act requires the government to enforce the terms of its deeds and that the land be used for recreational purposes. The relevant deeds require that Wisconsin use the park for its originally intended purposes. Dog training and motorcycle riding were not mentioned in Wisconsin’s initial application. The group also argued that the National Environmental Policy Act (NEPA), 42 U.S.C. 4321, required an environmental impact statement.The Seventh Circuit affirmed summary judgment. Dog training and off-road motorcycle riding were not mentioned in the application, but are recreational uses. While helicopter training is not recreational, the Service included an explicit deed provision reserving the right to continue the flights, as authorized by the Property Act. The Service reasonably concluded that its approval of dog training and motorcycle riding fell within a NEPA categorical exclusion for minor amendments to an existing plan. The Service was not required to prepare an environmental impact statement for helicopter training because it had no authority to discontinue the flights. View "Sauk Prairie Conservation Alliance v. United States Department of the Interior" on Justia Law
Refined Metals Corp. v. NL Industries Inc.
Refined has owned the contaminated Beech Grove, Indiana lead smelter site since 1980 when it acquired it from NL. After years of litigation, Refined entered into a settlement with the federal Environmental Protection Agency (EPA) and the Indiana Department of Environmental Management (IDEM) in 1998. The 1998 Decree required Refined to close the site, pay a $210,000 fine, and remedy the contamination. EPA and IDEM agreed not to bring suit against Refined on some of their potential claims, effective immediately upon the entry of the Decree. In 2017, Refined sued NL to recoup some of the cleanup costs. The district court found that Refined’s claim was a “contribution action” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9613(f)(3)(B), subject to a three-year statute of limitations and dismissed the suit. The Seventh Circuit affirmed, rejecting Refined’s argument that its suit was a “cost-recovery” action under CERCLA section 9607(a), and timely under that subsection’s limitations period. The 1998 Decree qualified under section 9613(f)(3)(B), which creates a right to contribution for a party that has “resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement” and triggers the limitations period. View "Refined Metals Corp. v. NL Industries Inc." on Justia Law
Posted in: Environmental Law
Valbruna Slater Steel Corp. v. Joslyn Manufacturing Co.
Valbruna purchased the steel mill at a 2004 bankruptcy auction and began cleanup efforts under the Resource Conservation and Recovery Act, 42 U.S.C. 6901. In 2000, Slater, the site’s then-owner, had unsuccessfully sued Joslyn, which had owned and operated the site from 1928-1981, in state court seeking indemnification under the parties’ contract and costs under Indiana’s Environmental Legal Actions (ELA) statute. In 2010, Valbruna sued Joslyn under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9613(b), and ELA. Joslyn’s fault is undisputed. Joslyn raised claim-preclusion, statute-of-limitations, and contribution defenses. The district court found that the CERCLA claim was not precluded, but the ELA claim was, and that the suit was timely. The court imposed equitable contribution on Valbruna, requiring it to pay for 25% of past and future cleanup costs. The Seventh Circuit affirmed, agreeing that the CERCLA claim was not precluded. If there is no state-court jurisdiction to hear an exclusively federal claim, there is no claim preclusion. The claim was not barred as being filed more than six years after the start of “remedial action.” Slater’s earlier cleanup was “removal.” While the 25% imposition on a no-fault owner "reached the limits" of the court's discretion, there was no abuse of that discretion. Valbruna understood the site’s pollution problems before purchasing it and apparently paid far less than the asking price; the court was rationally concerned about a windfall for Valbruna. View "Valbruna Slater Steel Corp. v. Joslyn Manufacturing Co." on Justia Law
Boucher v. United States Department of Agriculture
In the 1990s, Boucher cut down nine trees on his family farm in Indiana. The U.S. Department of Agriculture (USDA) claimed that the tree removal converted several acres of wetlands into croplands, rendering the Bouchers’ entire farm ineligible for USDA benefits that would otherwise be available under the “Swampbuster” provisions in the Food Security Act of 1985, 16 U.S.C. 3801, 3821–24. The Seventh Circuit reversed the district court. The USDA repeatedly failed to follow applicable law and agency standards. It disregarded compelling evidence showing that the acreage in question never qualified as wetlands that could have been converted illegally into croplands and has shifted its explanations for treating the acreage as converted wetlands, so its actions qualify as arbitrary, capricious, and an abuse of discretion. The agency experts did not attribute the alteration of hydrology to the removal of the nine trees; the agency presented no evidence that the tree removal altered the wetland hydrology. The USDA failed to engage meaningfully with this point, ignoring a crucial factor under the agency’s interpretation of its regulation. View "Boucher v. United States Department of Agriculture" on Justia Law
Posted in: Agriculture Law, Environmental Law, Real Estate & Property Law
Varlen Corp. v. Liberty Mutual Insurance Co.
At its LASI site, Varlen plated locomotive engine parts in chrome. At its Silvis site, Varlen’s operations included refueling diesel engines. Varlen discovered groundwater contamination at both sites, spent millions of dollars in damages and remediation expenses, and sought indemnification from its insurer. Liberty Mutual denied coverage based on a policy exclusion for property damage arising out of chemical leaks or discharges. Varlen cited a policy provision stating that, despite the exclusion, Liberty would cover chemical leaks or discharges that were “sudden and accidental.” Varlen proffered the expert testimony of a geologist (Rogers) that the LASI contaminants were released because the concrete sump leaked and that the releases were “sudden and accidental” because they were not intended and occurred in sudden spurts when the sump failed. Rogers explained that he had experience working with sumps and had personal knowledge of these sumps in particular. Rogers testified that the Silvis releases were likely “sudden and accidental” because the contamination around the refueling area was too large to have occurred by minor leakage and was “consistent with overfills of diesel locomotives.” Rogers claimed that contamination at the chlorinated solvent storing area was “indicative of a drum overturning and suddenly leaking out.” The district court struck Rogers’s opinions as unreliable and speculative under Federal Rule of Evidence 702. The Seventh Circuit affirmed. To satisfy Daubert, Rogers needed to explain how the evidence led to his conclusions; Rogers failed to demonstrate that his conclusions were anything more than guesses. View "Varlen Corp. v. Liberty Mutual Insurance Co." on Justia Law
Liebhart v. SPX Corp.
The Liebharts own three houses on a block in Watertown, Wisconsin. Part of the block was previously occupied by a factory, built in 1920 and last owned by SPX. The factory manufactured power transformers containing polychlorinated biphenyls (PCBs), a carcinogenic chemical banned by the EPA in 1979. Studies revealed that the factory's concrete floor was generally contaminated. In 2014, SPX demolished the building with the assistance of the defendants. The Liebharts sued, alleging that dust and debris containing toxic chemicals migrated onto their properties, contaminating their yards and jeopardizing their health and the health of their tenants. Following discovery and the submission of expert witness reports, the district court granted the defendants summary judgment with costs. The Seventh Circuit vacated. Although the district court adequately evaluated the expert witnesses and did not abuse its discretion in its procedural decisions, the court set the bar unnecessarily high for the plaintiffs to show a violation of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, and the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601. RCRA requires only that harm “may” be imminent; similarly, TSCA does not impose a heightened standard. The parties should have another opportunity to litigate whether a substantial and imminent endangerment to health exists. View "Liebhart v. SPX Corp." on Justia Law
Posted in: Environmental Law, Real Estate & Property Law
Conway v. General Electric Co.
Plaintiffs purchased land near a former GE manufacturing plant that had operated in Morrison, Illinois for 60 years. The plant leached toxic chemicals that seeped into the groundwater. The Illinois Environmental Protection Agency filed suit under state law against GE in 2004 and has been working with the company since then to investigate and develop a plan to address the contamination. In 2013, plaintiffs filed suit under the citizen suit provision of the Resource Conservation and Recovery Act, 42 U.S.C. 6901, seeking a mandatory injunction ordering GE to conduct additional investigation into the scope of the contamination and ordering the company to remove the contamination. The district court found the company liable for the contamination on summary judgment but denied injunctive relief because, despite the many opportunities, plaintiffs did not offer evidence establishing a need for injunctive relief beyond what the company had already done in the state action. The Seventh Circuit affirmed. The district court had the discretion to award injunctive relief under the RCRA but was not required to order relief after a finding of liability. Plaintiffs did not carry their burden to establish mandatory injunctive relief was necessary under the RCRA. View "Conway v. General Electric Co." on Justia Law
EOR Energy, LLC v. Illinois Environmental Protection Agency
In 2007, the Illinois Environmental Protection Agency (IEPA) brought charges before the Pollution Control Board against EOR Energy and AET Environmental under the Illinois Environmental Protection Act, 415 ILCS 5/1–5/58, for transporting hazardous‐waste acid into Illinois, storing that waste, and then injecting it into EOR’s industrial wells. EOR unsuccessfully argued in state courts that the IEPA and the Board did not have jurisdiction over EOR’s acid dumping. EOR asserted that it was not injecting “waste” into its wells but was merely injecting an acid that was used to treat the wells and aid in petroleum extraction so that the Illinois Department of Natural Resources had exclusive jurisdiction under the Illinois Oil and Gas Act, 225 ILCS 725/1. EOR then sought a federal declaratory judgment. The district court dismissed the case, citing the Eleventh Amendment and issue preclusion. The Seventh Circuit affirmed, “emphatically” rejecting the “undisguised attempt to execute an end‐run around the state court’s decision.” View "EOR Energy, LLC v. Illinois Environmental Protection Agency" on Justia Law
Mittelstadt v. Perdue
Mittelstadt’s Richland County, Wisconsin land was enrolled in the Conservation Reserve Program (CRP), administered by the Department of Agriculture (USDA), from 1987-2006. CRP participants agree to remove environmentally sensitive land from agricultural production in return for annual rental payments from the USDA. In 2006, the agency denied Mittelstadt’s application to re-enroll. After exhausting his administrative appeals, he sued under the Administrative Procedure Act, 5 U.S.C. 701, and asserting a breach of contract. The district court entered judgment in favor of the agency. The Seventh Circuit affirmed. Under the regulations governing the CRP, the USDA has broad discretion to evaluate offers of enrollment in the program on a competitive basis by considering the environmental benefits of a producer’s land relative to its costs. Given the agency’s wide latitude, the Farm Services Agency did not abuse its discretion when it denied re-enrollment of Mittelstadt’s land under a new definition of “mixed hardwoods.” Because he never entered a new contract with the agency, there was no breach of contract. View "Mittelstadt v. Perdue" on Justia Law