Wednesday, September 8, 2010

McEvoy v. IEI Barge Services

Sep 7: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-3494. As explained by the court, East Dubuque, Illinois, is a small town on the Mississippi River. One local company that has profited from the river's proximity is IEI Barge Services, Inc. (IEI). IEI stores coal in an outdoor pile and loads it onto river barges. As the coal is moved around, coal dust is thrown off into the air. One of IEI's neighbors, Charles McEvoy, objected to the coal dust from IEI's
operations, because it was drifting into his home; he filed suit in Federal court. McEvoy's concerns were shared by others in the area.
    The Appeals Court notes that this suit, ". . .is about which legal tools are available to someone who wants to shift the cost of pollution to the polluter. We must consider whether the Clean Air Act. . . The district court concluded that the Act's citizen-suit provision does not support such an action. While we have no trouble recognizing why plaintiffs are seeking a remedy, we too conclude that the plaintiffs' allegations fall outside the scope of the Act."
    In its final opinion, the Appeals Court said, "Recognizing the ambiguity in the text of the regulation, we asked the parties during oral argument if they could identify any specific rules or background principles in Illinois law to guide our interpretation. The parties submitted supplemental briefs on this question, and we thank them for their efforts. In the final analysis, however, we were convinced by these submissions and our own research that it is not our role to flesh out this regulation without better guidance from the competent administrative bodies. In addition, we do not exclude the possibility that an Illinois court might be able to clarify some of the ambiguity. Any statements from the Illinois executive branch -- including, but not limited to, formal or informal guidance from the Illinois Environmental Protection Agency -- should be given due consideration by any court interpreting this provision and its interaction with the Act. Without any such guidance, however, we conclude that the Fugitive Particulate Matter regulation cannot be used as the basis of a citizen's suit under the Clean Air Act."
    Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).] 

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