A Chicago federal judge has refused to sink a
lawsuit by environmental activists alleging the Metropolitan Water Reclamation
District of Greater Chicago has polluted waterways with excessive levels of
phosphorus, ruling the district failed to show the activists contradicted
themselves, by arguing in state court environmental permits do not
significantly restrict phosphorus discharges, while arguing in federal court
the permits do impose such restrictions.
The Dec. 27 decision was delivered by U.S.
District Judge John Tharp Jr., favoring the Natural Resources Defense Council,
the Sierra Club and Prairie Rivers Network in their action against the water
reclamation district. The district covers 883 square miles, treating wastewater
from Chicago and 125 suburban communities.
In 2011, the environmental groups lodged a
suit against the district, alleging the district violated its federally issued
National Pollution Discharge Elimination System (NPDES) permits by discharging
phosphorus, which purportedly exceeded permissible levels, in treated water
from three of its seven wastewater treatment plants. The three plants are in
Skokie, Cicero and at 400 E. 130th St., Chicago. The treated water enters
Chicago-area waterways, eventually streaming into the Mississippi River and
then the Gulf of Mexico.
The groups alleged the excessive phosphorus
affected algal and plant growth, as well as levels of dissolved oxygen, which
violated Illinois water quality standards. They are asking the court to order better
filtering. The district has denied it is in violation, maintaining that
“reducing the manmade phosphorus component ... would be unlikely to affect”
algal and plant growth.
While this suit was pending, plaintiffs took
action against the district regarding the Illinois Environmental Protection
Agency's renewal of the district's permits that took effect Jan. 1, 2014.
Plaintiffs went before the Illinois Pollution Control Board, arguing the
permits set phosphorus limits too high to maintain water quality. The district
countered the limits went “above and beyond” what the law required.
The Pollution Control Board disagreed,
upholding the permits. Plaintiffs then repeated their arguments in state
appellate court, where they carried the day in February 2016. The permits were
remanded to the board for further proceedings.
In federal court in October 2016, the district
filed a motion to bar plaintiffs' federal claim, alleging plaintiffs argued in
appellate court the permits do not meaningfully restrict phosphorus, but are
contending in federal court the permits do impose worthy restrictions that the
district allegedly violated.
Judge Tharp sided with plaintiffs, concluding
they weren’t engaging in “double-speak,” as the district claimed.
Tharp said plaintiffs argued in appellate
court the phosphorus requirements were difficult to enforce and it was
inefficient to rely on “ex post facto enforcement” through litigation after
violations take place. These contentions were consistent with plaintiffs’
“There is simply nothing wrong with trying to
enforce existing limits while pushing for the imposition of more and stringent
regulations going forward,” Tharp observed.
Tharp went on to say the district’s
characterization of plaintiffs’ appellate arguments is “inaccurate and without
any grounding,” leaving him “baffled” as to how the district could have
developed such a characterization.
Tharp added that on the subject of
consistency, both sides have “emphasized different points in different
contexts, but the line of clear inconsistency has not been crossed.”
The judge took the district to task for filing
its motion late in the case – trial preparations were gearing up in earnest –
saying it would cause “substantial prejudice to toss out this case based upon a
legal argument that was available to the District seven months before this
motion was made.”
A pretrial conference is set for Jan. 6 with
jury trial scheduled for Jan. 17.
The NRDC is represented by the Chicago firm of
Baker & McKenzie. The Sierra Club and Prairie Rivers Network are
represented by Chicago lawyer Albert Ettinger.
The Metropolitan Water Reclamation District of
Greater Chicago is represented by in-house counsel and the firm of Beveridge
& Diamond, which has offices in Chicago and Washington, D.C.