Side agreements with environmental regulators an uphill battle in court

By Robert Lawson | Oct 3, 2016

PEORIA, Ill. (Legal Newsline) - A recent case in Illinois federal court has brought attention to the fact that organizations need to pay close attention to specific and strict requirements of the environmental regulators, even when they have come to so-called side agreements with them. Why? Citizen lawsuits.

A citizen suit brought by the Sierra Club, the Natural Resources Defense Council and the Respiratory Health Association against Illinois Power Resources LLC focused on a side agreement the company had with the Illinois Environmental Protection Agency.

The side agreement allowed IPR a different pre-arranged method of reporting opacities lasting 30 minutes or longer, rather than the state permit's requirement of contact via telephone immediately, wrote Seth Jaffe of Foley Hoag LLP in a recent column about the case. He opined that citizen suits remain a powerful weapon in environmental claims of injury and other related cases.

Jaffe advised to avoid relying on these side agreements to have any substantive measures against government regulation and punishment. 

One of the major groups that has claimed responsibility for bringing similar cases forward in court is the Environmental Law & Policy Center. Jennifer Cassel is a staff attorney for the ELPC.

"Any group that has an engaged membership and the ability to review the reports filed by companies or to gather high-quality data can partner with an organization like Environmental Law & Policy Center to bring Clean Air Act cases," Cassel said in an email interview with Legal Newsline.

Cassel said there are a range of reasons that citizen suits arise.

"There are many reasons to file a citizen action, ranging from failure to obtain a required permit, to failure to fulfill requirements of a permit, to failure to install or use pollution control devices as required by law," she said.

"All of these reasons share one common thread: concerns over the impact of pollution on communities and public health."

Cassel also explained why defendants challenge their standing.

"Often these cases are built on self-reported data, and when a defendant is unsure of their ability to win on the merits, they will attempt to short-circuit the case with an argument about standing," she said.

In the case of the side agreement, the court ruled the company did not follow the strict requirements of the law and the Clean Air Act. The court's opinion was that the "defendants’ attempt to rewrite the text of the permit through informal agreement must be rejected."

Jaffe said suits are difficult enough to block when formal agreements are made, so informal ones are just as vulnerable.

Cassel said monitoring by citizen groups varies.

"There is a tremendous range in the level of monitoring by both regulators and by citizen groups and both could do more to collect data and make that data publicly available," she said.

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Organizations in this Story

Illinois Environmental Protection Agency U.S. District Court for the Central District of Illinois

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