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Seventh Circuit Holds That Environmental Group Has Standing To Challenge Validity Of Permit To Destroy Wetlands

Holleb_Hotaling_Keri_COLORBy Keri L. Holleb Hotaling

 

Yesterday, the Seventh Circuit found that an environmental group, the American Bottom Conservancy (the "Conservancy"), has standing to sue to invalidate a U.S. Army Corps of Engineers ("Corps") decision to allow Waste Management of Illinois, Inc. ("WMI") to destroy over eighteen acres of wetlands in southwestern Illinois.

The "American Bottom" is a 175-square-mile floodplain of the Mississippi River located across the river from St. Louis, Missouri. The area contains wetlands that provide habitat for many different species of birds, butterflies, and other wildlife. The Conservancy seeks to preserve the wetlands for its members who include birdwatchers and others. WMI owns and operates a landfill in the American Bottom which is filling up with waste and will reach capacity in 2012. WMI wants to build another landfill, the North Milam landfill, on 180 acres of a 220-acre tract of land that it owns just north of its current landfill and just south of an Illinois state park. The 220-acre tract contains five wetland areas.

Regardless of whether WMI is granted permission to build a new landfill by the Illinois Environmental Protection Agency, WMI plans to remove soil from some of the wetland areas on its 220-acre tract of land and transport the soil to its existing landfill to provide "daily cover" to the layers of waste as they are piled atop the existing landfill. The wetlands would be transformed into a dry "borrow pit." The Corps granted the permit to WMI to destroy 69 percent of the wetland areas (18.4 of 26.8 acres) on condition that WMI create double the amount of wetlands on a nearby tract that it owns.

Judge Posner, writing for the Seventh Circuit, found that "[t]he magnitude…of the injury is not critical to the concerns that underlie the requirement of standing; and so denying a person who derives pleasure from watching wildlife of the opportunity to watch it is a sufficient injury to confer standing." Specifically, the Seventh Circuit held that "it is enough to confer standing that their pleasure is diminished even if not to the point that they abandon the site" for their bird- and wildlife-watching activities.

Even though WMI will add two acres of wetland for every acre it destroys, the Seventh Circuit also found that much of the current bird and butterfly population will likely be gone before the wetlands are rebuilt because "[t]hey are unlikely to hang around for years waiting for the re-creation of their habitat in a different place." The Court further noted that if the Conservancy can prevent the wetlands' destruction "by knocking out the Corps of Engineers permit, there will be no North Milam landfill. And so a judgment in the plaintiff's favor in the present lawsuit would eliminate a probable injury from the landfill. No more is necessary to establish standing."

The Seventh Circuit reversed with instructions to reinstate the suit. Circuit Judges Richard Posner, Daniel A. Manion and U.S. District Judge Joan Humphrey Lefkow, sitting by designation, sat on the panel for the Seventh Circuit. The case is American Bottom Conservancy v. U.S. Army Corps of Engineers et al., case number 10-3488.