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:
Private intervenors are supposed to "supplement rather than to supplant" public litigation….Why would anyone settle with the EPA or a state, if the settlement did not buy peace? The District made costly promises, but if the Alliance is right then it got nothing in return, for the Alliance can carry on with the suit. And if the Alliance also settled, then another person could intervene to demand still more relief.
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:
[T]he District is so large, and the locations of potential outfalls so numerous, that it's just not practical to try to cover all details in one document. The EPA anticipates working out details as time passes …and if the District does not cooperate the court can afford supplemental relief.
As for what happens in 2029 or later if untreated discharges continue at an unacceptable rate, the next steps ought to depend on what's not then working well. If the EPA (or a court) could be sure in 2014 what the exact nature of the problem (if any) would be in 2029, then it would be sensible to start planning and building the remedy today; but if either there won't be a serious problem in 2029, or the problem is something not now foreseen, then relying on a 2014 decree for the solution would be foolish. Yogi Berra observed that it is hard to make predictions, especially about the future. State and federal agencies are entitled to rely more on experience and less on predictions.
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.
Background
The case, United States and State of Illinois v. Metropolitan Water Reclamation District of Greater Chicago, involves efforts by environmental activist groups to alter a wet weather consent decree successfully negotiated by MWRD with federal and state regulators in late 2011. Shortly after the public comment period on the decree closed, the activist groups intervened in the case to prevent the court from entering the decree as negotiated by the original parties. The activists sought changes to make the consent decree more stringent and costly, arguing among other things that the decree would take too long to complete and that the proposed storage capacity for sewer overflows was too small.
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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