792 F.3d 821
7th Cir.2015Background
- The Metropolitan Water Reclamation District (the District) built the Tunnel and Reservoir Plan (TARP or "Deep Tunnel") to capture combined stormwater and sewage overflows; final system capacity planned at 17.5 billion gallons with major reservoirs (Thornton, McCook) still under construction.
- Because much of the Chicago area is impervious, heavy rains can overwhelm the sewer system and cause untreated overflows at numerous outfalls; completion delays and some tunnel design limits mean overflows still occur.
- In 2011 the United States and Illinois sued the District under the Clean Water Act, seeking improved performance, accelerated completion, and interim mitigation; environmental groups (the Alliance) intervened and opposed a negotiated consent decree.
- The proposed consent decree requires completion of Deep Tunnel, operational criteria, monitoring, interim mitigation (boats, booms, green infrastructure), and enforcement mechanisms including stipulated penalties and post-completion remediation duties.
- The district court approved the consent decree over the Alliance’s objections; the Alliance appealed arguing the decree is unreasonable, concedes continued unlawful discharges, and is inadequately specific about monitoring and remedies.
- The Seventh Circuit affirmed: it held the decree resulted from diligent prosecution by the government, binds intervenors under CWA §1365(b)(1)(B), and is a reasonable settlement likely to achieve compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether intervenors (the Alliance) are bound by the government’s consent decree | Alliance: Cannot be bound by a contract it didn’t sign; settlement should not preclude private enforcement | Gov/State: §1365(b)(1)(B) bars private suits when government "has commenced and is diligently prosecuting" and allows intervenors limited rights | Held: §1365(b)(1)(B) binds later-filed private suits if government diligently prosecuted; intervenors may object, appeal, introduce evidence, and enforce the decree but not pursue separate stand‑alone suits |
| Whether the government’s prosecution was "diligent" for preclusion purposes | Alliance: A consent decree that likely won’t achieve compliance shows lack of diligence | Gov/State: Diligent prosecution can include reasonable settlements reached after evaluation | Held: Diligence determined by whether the consent decree is a reasonable settlement likely to achieve principal enforcement goals; district court adequately evaluated reasonableness |
| Whether the consent decree improperly authorizes unlawful discharges by permitting releases when tunnels are full or during "transient events" | Alliance: Those provisions concede continued unlawful discharges and are insufficiently quantified | Gov/State: Permits authorize some discharges; allowing emergency protective measures protects infrastructure and complies with statutory permitting | Held: Authorization in permits and decree for limited discharges when no alternative exists does not make the decree unlawful; permits govern such releases |
| Whether the decree is too vague/insufficiently specific (monitoring, remedies, floatables control) | Alliance: Decree lacks specifics on monitoring frequency, parameters, locations, and precise remedies if compliance fails by 2029 | Gov/State: Practical limits and system complexity make some details unsuitable for a single decree; obligations and mechanisms for supplementary relief exist | Held: District court did not clearly err; decree reasonably balances practicability, cost, and enforceability and includes monitoring, interim measures, and requirements to develop further plans if needed |
Key Cases Cited
- United States v. ITT Continental Baking Co., 420 U.S. 223 (discussing consent decrees as contractual and equitable instruments)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (private intervenors should "supplement rather than supplant" public enforcement)
- Friends of Milwaukee’s Rivers v. Milwaukee Metropolitan Sewerage District, 382 F.3d 743 (7th Cir.) (government settlements can preclude later private suits if diligently prosecuted)
- Taylor v. Sturgell, 553 U.S. 880 (scope of virtual representation and exceptions binding nonparties)
- South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (definition and scope of "discharge of any pollutant")
- Louisiana Environmental Action Network v. Baton Rouge, 677 F.3d 737 (5th Cir.) (application of §1365(b) to bind private claims)
- Piney Run Preservation Association v. Carroll County, 523 F.3d 453 (4th Cir.) (similar principles on preclusion by governmental prosecution)
- United States v. George A. Whiting Paper Co., 644 F.3d 368 (7th Cir.) (standard of review for consent decree approval)
- United States v. Metropolitan St. Louis Sewer District, 952 F.2d 1040 (8th Cir.) (treatment of governmental settlements vis-à-vis private plaintiffs)