Kkl Dev. Llc. v. Iei Barge Serv. Inc., s. 09-3494, 09-3495.

• Decision Date: 07 September 2010
• Docket Number: Nos. 09-3494, 09-3495.,s. 09-3494, 09-3495.
• Citation: 622 F.3d 671
• Parties: Charles McEVOY, Plaintiff-Appellant, and KKL Development, LLC, et al., Plaintiffs-Appellants, v. IEI BARGE SERVICES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

622 F.3d 671

Charles McEVOY, Plaintiff-Appellant,andKKL Development, LLC, et al., Plaintiffs-Appellants,

v.IEI BARGE SERVICES, INC., Defendant-Appellee.

Nos. 09-3494, 09-3495.

United States Court of Appeals,Seventh Circuit.

Argued April 5, 2010.

Decided Sept. 7, 2010.

Pamela R. McGillivray, McGillivray, Westerberg & Bender, Madison, WI, for Plaintiff-Appellant.

John A. Simon, Drinker Biddle & Reath, LLP, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

WOOD, Circuit Judge.

East Dubuque, Illinois, is a small town on the Mississippi River. One local company that has profited from the river's proximity is IEI Barge Services, Inc. (“IEI”). IEI stores coal in an outdoor pile and loads it onto river barges. As the coal is moved around, coal dust is thrown off into the air. One of IEI's neighbors, Charles McEvoy, objected to the coal dust from IEI's operations, because it was drifting into his home; he filed suit in federal court. McEvoy's concerns were shared by others in the area. KKL Development, LLC (“KKL”), which owns commercial property in East Dubuque, and Vroom Auto Mall and RV Plaza, Inc. (“Vroom”), which runs its business on KKL's property, worried that the dust would accumulate on their inventory and would create a hazard for their employees. The companies filed their own lawsuit, which mirrored McEvoy's.

Law students and professors around the country might find this story familiar; in a famous hypothetical, pollution emanating from a nearby factory sullies recently cleaned laundry drying on a clothesline. See, e.g., Robert Cooter & Thomas Ulen, Law & Economics 100-04 (5th ed. 2007); Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L.Rev.. 1089 (1972); Frank I. Michelman, Pollution as a Tort: A Non-Accidental Perspective on Calabresi's Costs, 80 Yale L.J. 647 (1971). The facts offer a pedagogically useful vehicle for discussing how different legal rules can be used to internalize external costs. This appeal is not, however, about clean laundry or the proper allocation of costs. Rather, it is about which legal tools are available to someone who wants to shift the cost of pollution to the polluter. We must consider whether the Clean Air Act (the “Act”), 42 U.S.C. §§ 7401 et seq., supports a private right of action permitting neighbors adversely affected by this coal dust to enforce two Illinois environmental regulations that IEI allegedly violated. The district court concluded that the Act's citizen-suit provision does not support such an action. While we have no trouble recognizing why plaintiffs are seeking a remedy, we too conclude that the plaintiffs' allegations fall outside the scope of the Act.

I

In the 1950s, Dubuque Sand & Gravel began operations in East Dubuque. In 1988, the company was renamed IEI; it has conducted operations on the Mississippi under that name ever since. IEI works with bulk materials, including coal. The company receives the materials from train cars, and either immediately loads them onto river barges or stores them on its premises in East Dubuque for later loading. According to the plaintiffs, all of IEI's activities release coal dust that is blown by the wind onto adjacent properties.

As we have mentioned, each of the plaintiffs has a stake in nearby property that is affected by the coal dust. McEvoy owns residential property. He alleged that he routinely observes coal dust crossing IEI's property line; he shuts his doors and windows to prevent the dust from accumulating in his home. KKL owns commercial property, which it leases to Vroom for use as a car and RV-camper dealership. The companies alleged that coal dust is regularly deposited on the dealership's inventory. They also worried that constant exposure to the coal dust would adversely affect employee health.

Fed up with this situation, the plaintiffs repaired to federal court. McEvoy filed a complaint in April 2006, and KKL and Vroom followed in January 2007. The complaints alleged theories of recovery under the citizen-suit provision of the Act. See 42 U.S.C. § 7604(a). (They also raised claims under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq., and state-law theories-namely, trespass, negligence, and nuisance.) As described in further detail below, the Act provides for citizen suits to enforce certain limits set by federal and state environmental laws. Invoking this mechanism, the plaintiffs asserted that IEI was violating five Illinois environmental regulations. Two of those regulations are at issue in this appeal. The first is Section 201.141, entitled “Prohibition of Air Pollution,” which provides:

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.

Ill. Admin. Code, tit. 35, § 201.141. Second is Section 212.301, the “Fugitive Particulate Matter” regulation, which states:

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.

Ill. Admin. Code, tit. 35, § 212.301.

IEI responded with motions for summary judgment in both cases; it asked the court to find that the plaintiffs had failed to state a federal claim and then to dismiss the supplemental state-law claims without prejudice. The district court did just that on September 11, 2009, granting IEI's motions for summary judgment. Of particular relevance to this appeal, the district court concluded that the Act did not provide a private right of action to enforce the two Illinois regulations quoted above. (The district court amended its judgment to comply with the Federal Rules on May 7, 2010, but the substantive decisions remained the same.)

The plaintiffs appeal only from the district court's judgment barring them from using the Act to enforce Illinois's Prohibition of Air Pollution and Fugitive Particular Matter regulations. They do not challenge the district court's disposition of the claims based on the other Illinois regulations, nor have they complained about its decisions on their RCRA and state-law claims. We consolidated these appeals for our review.

II

The Act brings together federal, state, and private resources for the purpose of protecting and enhancing the quality of the nation's air. 42 U.S.C. § 7401. Central among the tools that the Act creates to effectuate these objectives are the national ambient air quality standards (the “NAAQS”), see id. § 7409. The NAAQS are set by the federal Environmental Protection Agency (the “EPA”) and further implemented through State Implementation Plans (“SIPs”), see id. § 7410. (We apologize for this mess of alphabet soup, but these abbreviations are in such common use that it would only confuse to adopt anything more felicitous.) SIPs are required if the state wants additional emission limitations; they also establish the regime governing pollution permits. Id.

Setting standards is just the first step; without effective enforcement those standards would be so many words on a piece of paper. The Act authorizes the EPA to enforce its provisions and implementing rules. 42 U.S.C. § 7413. In addition, the Act includes a “citizen suits” provision, which provides that private citizens may bring civil actions in federal courts against, among others, violators of emission standards or limitations. Id. § 7604(a)(1)(A). Citizen-suit provisions in environmental laws empower individual persons to serve as private attorneys general and to enforce standards set at the federal or state level. The theory is that the efforts of these private parties will supplement governmental enforcement.

A

As we have already noted, McEvoy and his fellow plaintiffs have alleged that IEI violated Illinois's Prohibition of Air Pollution and Fugitive Particulate Matter regulations. They identified the Act's citizen-suit provision as the source of their entitlement to seek a remedy for those alleged violations. This appeal asks us to look closely at the types of provisions that a citizen may enforce through the Act. The plaintiffs invoked the Act's express right of action “against any person ... who is alleged to have violated ... or to be in violation of (A) an emission standard or limitation under this chapter....” 42 U.S.C. § 7604(a)(1)(A). One learns immediately from this language that the right to sue is tethered to the Act's definition of the phrase “emission standard or limitation under this chapter.” See id. § 7604(f). Paragraph (f) creates four categories of enforceable standards and limitations. The plaintiffs are relying on subparagraphs (f)(1) and (f)(4), and so we reprint only those parts of the definition here. Emission standards and limitations enforceable through § 7604(a)(1)(A) include:

(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard, [or]

...

(4) any other standard, limitation, or schedule established under any permit issued pursuant to [42 U.S.C. §§ 7661-7661f] or under any applicable State implementation plan approved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations[,]

which is in effect under this Act (including a requirement applicable by reason of [42 U.S.C. § 7418] ) or under an applicable implementation plan.

42 U.S.C. § 7604(f). To establish a right of action, therefore, the plaintiffs must identify a regulation that qualifies as an “emission standard or...