Articles Posted in US Court of Appeals for the Seventh Circuit

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Regional transmission organizations manage the interstate grid for electricity, conduct auctions through which many large generators of electricity sell most or all of their power, and are regulated by the Federal Energy Regulatory Commission (FERC) Illinois subsidizes nuclear generation facilities by granting “zero emission credits,” which generators that use coal or gas to produce power must purchase from the recipients at a price set by the state. Electricity producers and municipalities sued, contending that the price‐adjustment aspect of the system is preempted by the Federal Power Act because it impinges on the FERC’s regulatory authority. They acknowledge that a state may levy a tax on carbon emissions; tax the assets and incomes of power producers; tax revenues to subsidize generators; or create a cap‐and‐trade system requiring every firm that emits carbon to buy credits from firms that emit less carbon. They argued that the zero‐emission‐credit system indirectly regulates the auction by using average auction prices as a component in a formula that affects the credits' cost. The Seventh Circuit affirmed summary judgment for the defendants. Illinois has not engaged in discrimination beyond that required to regulate within its borders. All Illinois carbon‐emitting plants need to buy credits. The subsidy’s recipients are in Illinois. The price effect of the statute is felt wherever the power is used. All power (from inside and outside Illinois) goes for the same price in an interstate auction. The cross‐subsidy among producers may injure investors in carbon‐ releasing plants, but only plants in Illinois. View "Village of Old Mill Creek v. Star" on Justia Law

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In 1995, Orchard purchased the Warmke Parcel, 13 acres of wetlands, for residential development. Orchard requested a determination from the Army Corps of Engineers that the wetlands were not jurisdictional “waters of the United States” under the Clean Water Act, 33 U.S.C. 1251(a). Before 2015, the Corps defined waters of the United States to include waters “subject to the ebb and flow of the tide,” “rivers” that could be used for interstate recreation or commerce, “tributaries” of such waters, and “wetlands adjacent to” other waters of the United States, including tributaries. The Warmke wetlands are surrounded by residential development. The closest navigable water, Little Calumet River, is 11 miles away. In between the Warmke wetlands and Little Calumet River are man‐made ditches, sewer pipes, and Midlothian Creek—a tributary of the Little Calumet River. The Warmke wetlands drain, via sewer pipes, to Midlothian Creek. While the Warmke issue was pending, the Supreme Court decided that a wetland’s adjacency to a tributary of a navigable‐in‐fact water is alone insufficient to make the wetland a water of the United States, “the Corps’ jurisdiction over [such] wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” The Seventh Circuit reversed the Corps’ claim of jurisdiction, finding that the Corps has not provided substantial evidence of a significant nexus to navigable‐in‐fact waters. View "Orchard Hill Building Co. v. United States Army Corps of Engineers" on Justia Law

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In 2007, Canadian National Railway (CN) sought approval from the Surface Transportation Board of its acquisition of the EJ & E rail line near Chicago. The Board considered the impact of the acquisition on 112 railroad crossings throughout the area, including the intersection at U.S. Highway 14 in Barrington. Crossings projected to be “substantially affected” were eligible for mitigation measures imposed by the Board as a condition to its approval, up to and including grade separation between the roadway and rail line. The Board approved CN’s acquisition, finding that U.S. 14 would neither be substantially affected nor warrant a grade separation. Barrington unsuccessfully petitioned the Board to reopen its decision three times. The Seventh Circuit denied a petition for review. Barrington did not present new evidence or substantially changed circumstances that mandate a different result, 49 U.S.C. 1322(c). The Board conducted an environmental review (National Environmental Policy Act, 42 U.S.C. 4321–4370m‐12) and concluded that U.S. 14 did not exceed any of the three congestion thresholds for substantially affected crossings because “the major source of congestion” at U.S. 14 is “excess vehicle demand at existing major thoroughfare intersections” and “existing traffic signals in proximity to one another,” not CN’s acquisition of the EJ & E line. View "Village of Barrington v. Surface Transportation Board" on Justia Law

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Wisconsin proposes to renovate 7.5 miles of Highway 164 (formerly Highway J), a two-lane Washington County road, with repaving, reconstruction near hill crests to improve visibility, widening lanes and shoulders, updating guardrails, and adding rumble strips, turn, and bypass lanes. A 141-page environmental report concluded that the renovation would not cause any significant environmental effects but would reduce the accident and injury rate. Accidents are 63% more likely, per mile traveled, on this stretch than on Wisconsin’s other rural highways. The Federal Highway Administration approved the report and federal funding, finding an environmental impact statement unnecessary. The Seventh Circuit affirmed the rejection of opponents’ challenges. The National Environmental Policy Act requires an environmental impact statement for “major Federal actions significantly affecting the quality of the human environment,” 42 U.S.C. 4332(2)(C). Renovating 7.5 miles of an existing road does not stand out as a major cause of a significant effect and qualifies for the “categorical exclusion” of projects that are not “major.” The Administration (23 C.F.R. 771.117) believes that renovating existing roads generally does “not individually or cumulatively have a significant effect on the human environment.” The years-long, 141-page study concluded that the project would not have a significant environmental effect; the state will create new wetlands at another site and no threatened or endangered species will be adversely affected. View "Highway J Citizens Group v. United States Department of Transportation" on Justia Law

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After the Garcias bought their Lake Station Property in 2004, it was used as an automobile repair shop and a day spa. It previously was used as a dry cleaning facility and contained six underground storage tanks: four were used for petroleum-based Stoddard solvent, one was used for gasoline, and the last for heating oil. In 1999, the dry cleaning company reported a leak from the Stoddard tanks to the Indiana Department of Environmental Management (IDEM). In 2000, a site investigation was conducted and five groundwater monitoring wells were installed. IDEM requested additional information and testing in 2001 and 2004. The Garcias claim they had no knowledge of the preexisting environmental contamination before insuring with Atlantic. A 2014 letter from Environmental Inc. brought the contamination to the Garcias’ attention. The Garcias hired Environmental to investigate and learned that Perchloroethylene solvent and heating oil still affected the property. Atlantic obtained a declaration that its Commercial General Liability Coverage (CGL) policies did not apply. The Seventh Circuit affirmed, reading a “Claims in Process” exclusion to preclude coverage for losses or claims for damages arising out of property damage—known or unknown—that occurred or was in the process of occurring before the policy’s inception. View "Atlantic Casualty Insurance Co v. Garcia" on Justia Law

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The Environmental Protection Agency designated Williamson County, Illinois, as a nonattainment area for national air quality standards for sulfur dioxide. The rule is not limited to Williamson County; it makes attainment designations for 61 geographic areas spanning 24 states. Southern Illinois Power Cooperative sought judicial review. The EPA moved to dismiss or transfer the petition to the D.C. Circuit under the terms of the judicial-review provision of the Clean Air Act, which designates that circuit as the exclusive venue for review of “nationally applicable” agency actions. 42 U.S.C. 7607(b)(1). The Seventh Circuit agreed that the challenged rule is nationally applicable and transferred the petition to the D.C. Circuit. The court noted that its decision conflicts with its 1993 decision, Madison Gas & Electric Co. v. EPA, which it overruled. View "Southern Illinois Power Cooperative v. Environmental Protection Agency" on Justia Law

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Because the state proposed to use federal highway funds to widen Wisconsin Route 23, the U.S. Department of Transportation (USDOT) issued an environmental impact statement (EIS). USDOT made a record of decision (ROD) permitting the use of federal funds. Opponents filed suit. The court denied a request for an injunction because Wisconsin can proceed using its own money regardless of whether USDOT satisfied the requirements for a federal contribution, but set aside the ROD, finding that the statement projecting 2035 traffic loads had not adequately disclosed all assumptions. USDOT issued a revised EIS with additional details about how the traffic estimates had been generated. The district court reiterated the order vacating USDOT’s ROD. The judge stated that plaintiff was entitled to a declaratory judgment but neglected to issue one. The order setting aside the ROD was appealed by the Wisconsin Department of Transportation. The Seventh Circuit dismissed an appeal. USDOT did not appeal. Wisconsin remains free to continue the project at the state’s expense. The National Environmental Policy Act, on which the suit rests, applies only to the national government, 42 U.S.C. 4332(2)(C). Wisconsin cannot seek relief against a judgment that does not bind it. Wisconsin does not contend that USDOT had a statutory duty to fund the project, to prepare a better EIS, or to appeal the decision. View "1000 Friends of Wisconsin, Inc v. Wisconsin Department of Transportation" on Justia Law