United States v. Metro. Water Reclamation Dist. of Greater Chi.

• Decision Date: 09 July 2015
• Docket Number: Nos. 14–1776 & 14–1777.,s. 14–1776 & 14–1777.
• Parties: UNITED STATES of America and State of Illinois, Plaintiffs–Appellees, and Alliance for the Great Lakes, et al., Intervening Plaintiffs–Appellants, v. METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

792 F.3d 821

UNITED STATES of America and State of Illinois, Plaintiffs–AppelleesandAlliance for the Great Lakes, et al., Intervening Plaintiffs–Appellants

v.METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, Defendant–Appellee.

Nos. 14–1776 & 14–1777.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 12, 2015.

Decided July 9, 2015.

Steven David Ellis, Katherine Wade Hazard, Attorney, Department of Justice, Washington, DC, Kurt Lindland, Attorney, Carl J. Elitz, Attorney, Office of the Attorney General, Chicago, IL, for Plaintiffs–Appellees.

Gabrielle Sigel, Attorney, Jenner & Block LLP, Jessica Dexter, Attorney, Chicago, IL, for Intervening Plaintiffs–Appellants.

Richard S. Davis, Benjamin F. Wilson, Attorney, Beveridge & Diamond, Washington, DC, Ronald M. Hill, Attorney, Metropolitan Water Reclamation District of Greater Chicago, Chicago, IL, for Defendant–Appellee.

Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.

Opinion

EASTERBROOK, Circuit Judge.

So much of the Chicago metropolitan area is covered with concrete or other impermeable surfaces that the remaining ground cannot absorb the water from heavy rain. The excess goes into a combined stormwater and sewer system, which can overflow and escape through outfalls located on the banks of canals and rivers. In 1975 the Metropolitan Water Reclamation District, which manages sewage control (including purification plants), began construction on an ambitious project to impound water until it can be cleaned up and released safely: the Tunnel and Reservoir Plan, sometimes called TARP and commonly known as Deep Tunnel.

About 110 miles of large-diameter tunnels, as much as 350 feet underground (hence “deep” tunnel), collect runoff water and sewage during rainfall. But these tunnels, large and extensive as they are, can hold “only” 2.3 billion gallons of water, and heavy or extended rain may exceed that capacity. The plan therefore includes reservoirs, to which the tunnels direct their contents during high-inflow conditions. Two reservoirs, which between them can hold 3.4 billion gallons, are operational today. One of these is scheduled to be replaced later this year by the Thornton Composite Reservoir, which can accommodate 4.8 billion gallons from TARP. (This reservoir can hold 7.9 billion gallons, but 3.1 billion gallons of that capacity is for overflow from Thorn Creek and is not counted as part of the Deep Tunnel system.) The final piece of the system, the McCook Reservoir, is scheduled for completion in 2029 with a capacity of 10 billion gallons (and an interim capacity of 3.5 billion gallons by 2017). Deep Tunnel's final capacity will be 17.5 billion gallons.

The Thornton and McCook reservoirs have taken a long time to build because both will occupy worked-out limestone quarries. The demand for limestone, which has declined in recent years, affects the date of completion. (Paying to have limestone dug up in advance of demand from building and roadwork projects not only would be expensive but also would require the acquisition of land on which to dump huge piles of limestone, which would be unsightly and also create environmental problems as minerals leached from the limestone during rain.) But the delay in finishing the reservoirs, plus some problems in the design of the tunnels that can require the District to hold them below capacity, have hindered the system's ability to prevent stormwater and sewage releases. The record does not show how many untreated releases occur annually at the approximately 375 locations along rivers and canals where this is possible. It does show that flows from all sources (including direct rain runoff) are so substantial approximately once a year that the rivers and canals themselves would overflow unless permitted to discharge into Lake Michigan (normally locks prevent this, but they are opened when necessary to keep the rivers' levels under control).

In 2011 the United States and the State of Illinois jointly filed this suit, under sections 301 and 309 of the Clean Water Act, 33 U.S.C. §§ 1311, 1319, seeking an order that the District improve the TARP's performance, accelerate its completion date, and do more to contain and mitigate overflows in the interim. The district court permitted the Alliance for the Great Lakes and four other environmental organizations (collectively the Alliance) to intervene under 33 U.S.C. § 1365(b)(1)(B). See 2012 U.S. Dist. LEXIS 111223 (N.D.Ill. Aug. 7, 2012).

The complaint was accompanied by a proposed consent decree, which the pollution-control agencies had been negotiating with the District for four years. The settlement requires the District to complete the Deep Tunnel project, meet operational criteria when construction has been completed, monitor the system's performance, develop additional measures if needed to attain compliance with the Act and applicable permits in the interim, and maintain the decree in force until the district court concludes that compliance with the Act has been achieved. The Alliance opposed this proposal, contending that it requires the District to do too little and takes too long even for what it accomplishes. In a lengthy opinion, the district court rejected the Alliance's protest and entered the proposed decree. 2014 U.S. Dist. LEXIS 2049 (N.D.Ill. Jan. 6, 2014). The opinion contains many details about the settlement that we do not need to recapitulate, though we describe a few details later.

The district judge also concluded that the settlement binds the Alliance, and we start with this decision. A consent decree is at base a contract, see United States v. ITT Continental Baking Co., 420 U.S. 223, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975), and the Alliance asks how it can be bound by a contract to which it did not agree. The district court's answer was “res judicata” (the combination of issue and claim preclusion), but that doctrine prevents one party from litigating the same claim or issue in multiple suits. See Robinson v. Harvey, 617 F.3d 915, 916 (7th Cir.2010). The Alliance is not the United States or the State of Illinois, and there is only one lawsuit. The district court relied on Friends of Milwaukee's Rivers v. Milwaukee Metropolitan Sewerage District, 382 F.3d 743, 757–65 (7th Cir.2004), and United States v. Metropolitan St. Louis Sewer District, 952 F.2d 1040 (8th Cir.1992), but each of these decisions dealt with multiple suits (filed only a few hours apart in Friends of Milwaukee's Rivers ).

Our situation is governed not by principles of res judicata but by the fact that legislation may allocate litigation rights to an agency that represents the whole public. See Taylor v. Sturgell, 553 U.S. 880, 895, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (discussing the sixth exception to the norm that principles of virtual representation do not generally bind one person to the results of another's suit); Restatement (Second) of Judgments § 41(1)(d). The statute modifying the common law is § 1365(b), which provides:

No action may be commenced—

(1) under subsection (a)(1) of this section [which authorizes private suits to enforce the Clean Water Act]—

(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator [of the EPA], (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

Section 1365(b)(1)(B) tells us that no private litigation may be “commenced” if the EPA or a state “has commenced and is diligently prosecuting a civil ... action” about the same matter the private litigant wants to raise.

We held in Friends of Milwaukee's Rivers that this language also means that the resolution (including a settlement) of a federal or state suit is binding on a private litigant whose suit was filed after the state or federal government's, if the state or federal action was diligently prosecuted. Accord, Louisiana Environmental Action Network v. Baton Rouge, 677 F.3d 737, 749–50 (5th Cir.2012) ; Piney Run Preservation Association v. Carroll County, 523 F.3d 453, 459–60 (4th Cir.2008). The United States and Illinois contend that the outcome of a governmental suit is equally conclusive for private claims asserted by intervenors.

This leads the Alliance to ask what the point of intervention might be—for intervention, no less than a ban on standalone private litigation, is part of this scheme. The answer, we think, is that intervention carries four rights: to introduce evidence if the case goes to trial; to object to a proposed settlement (a right the Alliance has exercised); to appeal if the intervenor thinks that the government has accomplished too little (another right the Alliance has exercised); and to enforce any judgment, just as the United States and Illinois can do. This decree orders the District to come into compliance with the Act and its permits, providing details about how and when. If the District falls short, either in implementing the interim measures or achieving compliance by 2029, then the Alliance can ask the district court for relief. And if the District asks the district court to dissolve the decree in 2030, the Alliance, as a party, can protest that too and appeal from an adverse decision.

That is a more modest role than a full-fledged independent litigator would have, but § 1365(b)(1)(B) tells us that a private party is not supposed to be a full-fledged independent litigator, if the state or federal government diligently prosecutes a suit. This is also the implication of the Supreme Court's observation that private intervenors are supposed to “supplement rather than to supplant” public litigation. Gwaltney of...