Thomas J. King

September 17, 2010

On September 7, 2010, the United States Court of Appeals for the Seventh Circuit held that two Illinois regulations were not judicially enforceable and affirmed the dismissal of the Plaintiffs' citizen-suit under the Clean Air Act. The decision sheds light on the court's willingness to allow the citizen-suit provision of the Clean Air Act to be used to enforce broad, narrative state regulations governing air pollution.

As the court points out, the facts of this case seem to have been pulled from a law school final exam. IEI Barge Services stores and ships coal by barge down the Mississippi River. At times, these practices generated coal dust which was carried off by the wind into the air, eventually accumulating on the plaintiffs' property. The plaintiffs filed suit in the United States District Court for the Northern District of Illinois, Western Division, alleging remedies under the Clean Air Act, the Resource Conservation and Recovery Act, and Illinois state law such as nuisance, trespass and negligence. The district court granted IEI's motion for summary judgment, holding that the claims lacked federal subject-matter jurisdiction because the Clean Air Act could not be used to enforce the Illinois regulations cited in the plaintiffs' complaint. Accordingly, the district court dismissed the state law claims without prejudice. The plaintiffs appealed this determination, arguing that two of the regulations at issue were indeed enforceable.

The court of appeals first dealt with the issue of whether the Clean Air Act permitted enforcement of standards in a State Implementation Plan that were not found in individual permits, such as the two regulations at issue. Reversing the district court's determination, the court of appeals found that § 7604(f)(4) of the Clean Air Act permitted federal enforcement of State Implementation Plan standards not found in individual permits.

Finding that State Implementation Plan standards that are not found in individual permits may be enforceable under the Clean Air Act, the court of appeals turned to the question of whether the two regulations at issue set forth "judicially enforceable standards or limitations." The court of appeals characterized the first regulation at issue as the equivalent of stating "thou shall not pollute." Reasoning that enforcement of such a regulation would prohibit anyone in Illinois from breathing, the court of appeals held that the regulation lacked the specificity necessary to be deemed enforceable. The court of appeals struggled with the second regulation, admitting that it was a "closer call." Comparing the second regulation to the "highly specific limitations and standards found elsewhere in Illinois's environmental regulations," the court of appeals held that this standard was also too vague to qualify as judicially enforceable, affirming the decision of the district court and dismissing the state law claims without prejudice.

Sources:

1. McEvoy v. IEI Barge Services, No. 09-3494 & 09-3495, 2010 WL 3463703 (7th Cir. Sep. 7, 2010).

2. 35 Ill. Admin. Code, § 201.141 ("No person shall cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as, either alone or in combination with contaminants from other sources, to cause or tend to cause air pollution in Illinois, or so as to violate the provisions of this Chapter, or so as to prevent the attainment or maintenance of any applicable ambient air quality standard.").

3. 35 Ill. Admin. Code, § 212.301 ) ("No person shall cause or allow the emission of fugitive particulate matter from any process, including any material handling or storage activity, that is visible by an observer looking generally toward the zenith at a point beyond the property line of the source.").