720 N.E.2d 1034 (Ill. 1999), 86160, Glisson v. City of Marion

Docket Nº:86160
Citation:720 N.E.2d 1034, 188 Ill.2d 211, 242 Ill.Dec. 79
Party Name:JOSEPH M. GLISSON, Appellee, v. THE CITY OF MARION et al., Appellants.
Case Date:October 21, 1999
Court:Supreme Court of Illinois
 
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Page 1034

720 N.E.2d 1034 (Ill. 1999)

188 Ill.2d 211, 242 Ill.Dec. 79

JOSEPH M. GLISSON, Appellee,

v.

THE CITY OF MARION et al., Appellants.

No. 86160

Supreme Court of Illinois.

October 21, 1999

Opinion filed October 21, 1999.

Rehearing Denied November 29, 1999.

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[Copyrighted Material Omitted]

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Thomas W. Alvey, Jr., Thompson Coburn, Belleville, for the City of Marion.

Eric M. Schwing, Schwing & Salus, P.C., Springfield, for Joseph M. Glisson.

Mary Lee Leahy, Leahy Law Offices, Springfield, for Amicus Curiae, Mary Lee Leahy.

Albert F. Ettinger, Environmental Law and Police Center, Chicago, for Amicus Curiae, Sierra Club.

JUSTICE BILANDIC delivered the opinion of the court:

Plaintiff, Joseph M. Glisson, filed a complaint for declaratory and injunctive relief in the circuit court of Williamson County against defendants, the City of Marion, Illinois, and its mayor, Robert Butler. Plaintiff's complaint sought a declaration that defendants' construction of a dam and reservoir on Sugar Creek, located in Williamson and Johnson Counties of Illinois, violates the Illinois Endangered Species Protection Act (520 ILCS 10/1 et seq. (West 1998)). The complaint alleged, inter alia, that the project will destroy the habitat for two species that Illinois lists as threatened and endangered, resulting in the elimination of those species from the [188 Ill.2d 215] area in violation of the Act. Plaintiff also sought to enjoin defendants from constructing such a project on Sugar Creek. The circuit court granted defendants' motion to dismiss plaintiff's complaint for lack of standing. The appellate court reversed, holding that plaintiff has standing to pursue an action against defendants. 297 Ill.App.3d 841. Defendants filed a petition for leave to appeal, which this court allowed. 177 Ill.2d R. 315. We also allowed the Sierra Club, Defenders of Wildlife, and the Environmental

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Law and Policy Center of the Midwest leave to file a joint brief as amici curiae in support of plaintiff. 155 Ill.2d R. 345. For the reasons that follow, we reverse the judgment of the appellate court and conclude that plaintiff lacks standing to bring this action against defendants.

BACKGROUND

The City of Marion has a water supply problem. In the past, the City has drawn most of its water from Marion City Lake. The City's requirement of 1.7 million gallons per day of water far exceeds Marion City Lake's capacity of 1.1 million gallons per day. Furthermore, the raw water from Marion City Lake is of poor quality, requiring substantial chemical treatment to render it suitable for human consumption. The City proposed to solve its shortage of water by constructing a dam and reservoir on Sugar Creek, located approximately seven miles southeast of Marion. The result would be a lake that is approximately 2,500 feet wide and 20,000 feet long, and a reservoir that is capable of supplying 8.9 million gallons of water per day.

Because Sugar Creek is a navigable water of the United States, the City was required to obtain a permit pursuant to section 404 of the Clean Water Act of 1977 (33 U.S.C. §1344 (1988)), which requires anyone seeking to discharge dredged or fill materials into the navigable waters of the United States to obtain a permit from the [188 Ill.2d 216] United States Army Corps of Engineers (Corps). In 1989, the City submitted an application to the Corps for a permit to construct the dam and reservoir on Sugar Creek.

The Corps prepared an environmental assessment of the project pursuant to the National Environmental Policy Act (NEPA) and its related regulations. 42 U.S.C. §4332(2)(C) (1994); 40 C.F.R. §1501.4 (1998). Copies of that assessment were provided to various federal and state agencies, including the Illinois Department of Conservation (Department). The Department recommended that the City enter into formal consultation with the Department pursuant to the provisions of the Illinois Endangered Species Protection Act (520 ILCS 10/11(b) (West 1998)). The City subsequently met with the Department to discuss the potential impact of the construction project on threatened and endangered species in the project area. The Department later concluded that the City had completed the consultation process and that "[n]o additional discussions regarding endangered and threatened species" were required before the project could begin. The Corps concluded that the proposed project would create no significant environmental impact and, therefore, that no environmental impact statement was required. Thus, the Corps issued a permit to the City.

A group of plaintiffs filed suit in federal district court challenging the issuance of the permit. The district court determined that the permit was not properly issued because the Corps had not prepared an environmental impact statement pursuant to NEPA (42 U.S.C. §4332(2)(C) (1994)) before issuing the permit. Simmons v. United States Army Corps of Engineers, No. 91-4188-JLF (S.D. Ill. June 25, 1992) (Simmons I). The district court thus vacated the permit.

The Corps subsequently prepared both an environmental [188 Ill.2d 217] impact statement and a supplemental environmental impact statement, which concluded that the project would be "environmentally sustainable." The Corps then issued a second permit to the City. A group of plaintiffs challenged the issuance of the second permit. The district court ruled against the plaintiffs (Simmons v. United States Army Corps of Engineers, No. 96-4246-JPG (S.D. Ill. Dec. 18, 1996) (Simmons II)), and they appealed. The United States Court of Appeals for the Seventh Circuit held that the Corps improperly issued the second permit because the Corps failed to comply with its duty under NEPA to consider all reasonable alternatives in the environmental impact

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statement. Simmons v. United States Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997) (Simmons II). The Court of Appeals therefore reversed the district court in Simmons II and remanded the cause to the district court with directions to vacate the second permit issued by the Corps.

While the litigation challenging the second permit was pending before the Court of Appeals, plaintiff in this case filed a complaint for declaratory and injunctive relief. Plaintiff claimed that construction of the dam and reservoir violates sections 3 and 11(b) of the Illinois Endangered Species Protection Act (520 ILCS 10/3, 11(b) (West 1998)) because it will destroy the essential habitat of two species listed as threatened and endangered by Illinois, namely the least brook lamprey and the Indiana crayfish, and thereby will eliminate the species from the area. Plaintiff further claimed that he would suffer "intense harm" as a result of the dam and reservoir project because he is a naturalist who enjoys and uses Sugar Creek for "food gathering, recreation, spiritual, and educational activities," and because his lifestyle is "intertwined with and dependent on the natural world in general and Sugar Creek." Plaintiff requested that the circuit court (1) enter an order declaring that the dam [188 Ill.2d 218] and reservoir project violates the Illinois Endangered Species Protection Act, and (2) enjoin defendants from constructing the dam and reservoir.

Defendants filed a motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)), arguing, inter alia, that plaintiff lacks standing to sue under the Illinois Endangered Species Protection Act. In defendants' memorandum of law in support of the motion to dismiss, defendants argued that plaintiff does not allege any legally cognizable interest in the conservation, preservation or protection of the threatened or endangered species that would allegedly be harmed by the dam and reservoir project. According to defendants, plaintiff's interest is not in protecting the two species at issue, but rather, in opposing the construction of the dam and reservoir.

During a hearing on both the City's motion to dismiss and plaintiff's motion for a preliminary injunction, plaintiff responded to defendants' claim of lack of standing by contending that article XI, section 2, of the Illinois Constitution of 1970 provides plaintiff with standing to pursue an action against the City.

After considering the parties' arguments, the circuit court granted defendants' motion to dismiss. The circuit court therefore ordered plaintiff's complaint dismissed for plaintiff's lack of standing as a private citizen to pursue an action against defendants for violation of the Illinois Endangered Species Protection Act. The circuit court determined that plaintiff has no direct standing to enforce the Act as an individual because the Act is implemented by the Illinois Department of Natural Resources and enforced by the Attorney General. 1 The circuit court noted that since 1989, when the dam and [188 Ill.2d 219] reservoir project was first proposed, two governors and three attorney generals have served the state, and none chose to contest the City's project. The circuit court also determined that article XI, section 2, of the Illinois Constitution does not accord plaintiff standing to enforce the Act. The circuit court reasoned that, while article XI, section 2, apparently authorizes plaintiff to sue to preserve human health in appropriate circumstances and subject to legislative restriction, it does not...

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