A federal judge has, for now, shredded General Iron’s try at obtaining a court order forcing Chicago City Hall to allow the company to operate its new South Side metal recycling center which City Hall has blocked, at the behest of activists, despite City Hall’s earlier urging to build the recycling center on the proposed site.
On June 29, U.S. District Judge Robert M. Dow Jr. ruled General Iron can’t use federal courts to advance their legal claims, because City Hall’s sudden delay at processing the company’s permit request – ostensibly to address new “environmental justice” concerns from the U.S. Environmental Protection Agency under Democratic President Joe Biden - doesn’t amount to an unconstitutional taking of their property.
“… USEPA’s heightened concern with ‘concepts of environmental justice’ is new – perhaps an application of the adage that ‘elections have consequences’ – and it has not even been two months since (the city of Chicago) suspended their permit review to allow for additional evaluations in response to the request of federal authorities,” Judge Dow wrote.
“(General Iron’s) frustration with these additional layers certainly is understandable and the Court expresses no view on whether they amount to a breach of contract or a dereliction of duty remediable under the state law mandamus instrument, but they do not (at least yet) constitute a taking under the federal Constitution.”
General Iron filed suit in May, demanding the city pay them more than $100 million for an alleged politically motivated bureaucratic nightmare the company says it has been forced to endure at the hands of the city and the activists that city and federal officials allegedly are seeking to appease by appearing to backtrack on the city’s earlier support for General Iron’s proposed new $80 million metal recycling facility.
General Iron, operating under the name of Southside Recycling, has sought to open the new facility on a new 175-acre site in Chicago’s South Deering neighborhood since 2018.
That move was prompted by the city’s decision to pressure General Iron to close the metal recycling facility it had operated for decades on Chicago’s North Side for decades, citing emissions and pollution concerns.
In the years since, the city and Southside Recycling have worked on the necessary permits to allow the work to proceed on a new 175-acre site in Chicago’s South Deering neighborhood. According to the complaint, the recycling company has owned the land for decades.
According to the complaint, the city repeatedly assured the recycling center developers that its plans either met or exceeded all of the city’s rules. Southside Recycling then obtained all of the needed permits from the state, including emissions permits for its metal shredder from the Illinois Environmental Protection Agency.
They noted the IEPA modeling and review work, which was supervised by the U.S. EPA, “expressly addressed the important environmental justice concerns of the community” and “explicitly took into account the Southeast Side’s existing environmental burdens.”
However, when the company submitted its formal large recycling facility permit request to the city in November 2020, the project came under assault from activists both at public hearings and in public demonstrations, demanding the city deny the permit request.
The activists have cloaked their demands in concerns over the project’s alleged impact on the neighboring predominantly Black communities.
In response, the city has appeared to slow-walk the approval process, as city officials now claimed to have identified “deficiencies” with the plan. After General Iron claims they addressed those concerns, the company said the city still has refused to issue the permit, in violation of the city’s own rules and state law.
“The City has violated its duty to issue the LRF permit because certain community groups and environmental advocates have presented to the City a false choice between permitting the new facility and providing environmental justice to the surrounding community,” Southside Recycling wrote in its complaint.
“These groups have not, and cannot, dispute SR’s legal entitlement to the permit, nor can they contest the emission testing results, air dispersion modeling analyses or other science that demonstrates how SR’s state-of-the-art facility more than satisfies all applicable environmental health-based standards.”
The complaint asserted the city’s refusal to issue the permit, when General Iron has met every city requirement and rule, amounts to an unconstitutional and illegal taking of General Iron’s property.
Judge Dow, however, said U.S. Supreme Court precedent led him to conclude General Iron can’t press its taking claims against the city until the city has issued a “final decision” on the permit request.
A delay, even when the applicant has met all of the requirements to obtain a permit, does not amount to such a taking, at this point, the judge said.
Without being able to prove their taking claim, General Iron’s claims under Illinois state law also do not belong in federal court, Dow said, in dismissing the suit.
General Iron has been represented by attorney David J. Chizewer, of the firm of Goldberg Kohn Ltd., of Chicago.