ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
United States and the State of Illinois v. Metropolitan Water Reclamation District of Greater Chicago
On July 9, 2015 the U.S. Court of Appeals for the Seventh Circuit issued an order entering the wet weather consent decree as negotiated by the parties in United States, et al. v. Metropolitan Water Reclamation District of Greater Chicago (MWRD). Environmental activist groups intervened in the case to challenge the consent decree, arguing that the combined sewer overflow controls were inadequate to achieve water quality compliance and green infrastructure projects were insufficient. A lower court dismissed the activists' claims, leading to this appeal.
The court's order will serve as strong legal precedent for clean water agencies elsewhere in the country seeking to have consent decrees approved over objections from citizen groups. The Seventh Circuit's analysis of the role of intervenors in a consent decree challenge when the government is "diligently prosecuting" is of particular importance:
The court went on to acknowledge the importance of adaptive management and flexibility given the complexities of the systems and inability to predict the future:
NACWA attempted to participate in the case by submitting an amicus brief in December 2014, but the environmental groups refused to give consent for NACWA to file the brief. NACWA then submitted a request to the court, which surprisingly declined to accept the brief on the basis that it did not add any new information to what had already been briefed by the parties. NACWA argued the importance of upholding decrees that are negotiated by clean water utilities and government regulators, especially since these parties have the expertise to determine the proper requirements for the decree. The ability of third parties to substantially change decree requirements through a judicial challenge would add unnecessary cost and complexity to the consent decree process.
Briefing on the activist groups' challenge in the federal district court took several years. In January 2014, the court issued a very strong decision and win for MWRD that dismissed the activist challenge and entered the decree as negotiated. In considering whether the consent decree was in the public's best interest, the court noted the public's interest in environmental improvement must be balanced with reasonable and affordable ratepayer investment. The court also acknowledged the limited role of a federal judge in the consent decree approval process, noting that a court was required to approve or reject a proposed decree but was not empowered to require the parties to accept a settlement to which they have not agreed.
The activist groups appealed the district court decision in March 2014 to the Seventh Circuit. MWRD has requested NACWA file an amicus brief in the appeal supporting the lower court ruling.
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