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Glisson v. City of Marion

June 30, 1998

JOSEPH M. GLISSON, PLAINTIFF-APPELLANT,
v.
THE CITY OF MARION, ILLINOIS, AND ROBERT BUTLER, MAYOR, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Rarick

Appeal from the Circuit Court of Williamson County.

No. 97-CH-7

Honorable Paul S. Murphy, Judge, presiding.

Plaintiff, Joseph Glisson, filed a complaint for injunctive and declaratory relief in the circuit court of Williamson County, seeking to enjoin the City of Marion from constructing a dam and reservoir on Sugar Creek. Glisson alleged, inter alia, that the project will destroy the habitat for two species listed as endangered or threatened under the Illinois Endangered Species Protection Act (Act) (520 ILCS 10/1 et seq. (West 1994)). The circuit court dismissed Glisson's complaint, finding that he lacked standing. We reverse.

The City of Marion (Marion) and the Lake of Egypt Water District, which encompasses six counties and 15,000 rural customers, need more water. Since the 1920s, Marion has drawn most of its water from Marion City Lake. Marion's requirement of 1.7 million gallons per day of raw water far exceeds Marion City Lake's capacity of 1.1 million gallons per day. Furthermore, the water from Marion City Lake is of poor quality, requiring substantial chemical treatment to render it potable. The Lake of Egypt Water District also contends that it needs a new source of water. The water district gets its water from the Lake of Egypt, another reservoir of marginal quality.

Marion proposed to solve both problems by constructing a new water-supply reservoir. Marion would construct a dam across Sugar Creek near Creal Springs, Illinois, some seven miles southwest of Marion. The result would be a lake approximately 2,500 feet wide and 20,000 feet long and could supply 8.9 million gallons of water per day. It would also result in the loss of about eight miles of one of the last free-flowing streams in Southern Illinois and a corresponding loss of wildlife habitat.

As one of the navigable waters of the United States, Sugar Creek falls under Federal jurisdiction. Section 404 of the Clean Water Act (33 U.S.C.A. §1344 (West 1986 & Supp. 1997)) requires anyone seeking to discharge dredge or fill materials into the navigable waters of the United States to obtain a permit from the United States Army Corps of Engineers (Corps). Because of the requirement that the Corps issue a permit for the construction of the reservoir, the project became subject to the National Environmental Policy Act (NEPA) (42 U.S.C.A. §4321 et seq. (West 1994)) which requires, inter alia, that every recommendation or report on a proposal for a major Federal action significantly affecting the human environment be accompanied by an environmental impact statement (EIS). 42 U.S.C.A. §4332(2)(C) (West 1994). Federal regulations authorize the preparation of an environmental assessment to determine whether a project will significantly impact the human environment. 40 C.F.R. §1501.4(1).

Marion applied for a section 404 permit from the Corps. The Corps prepared an environmental assessment and provided copies to various state and Federal agencies. The Corps concluded that the proposed project would create no significant environmental impact and that, therefore, no EIS was required. The Sierra Club and others brought an action in the United States district court, and the district court reversed the Corps, finding that the project would create a significant impact on the environment and that an EIS was therefore required. Simmons v. United States Army Corps of Engineers, No. 91-CV-4188-JLF (S.D. Ill. June 25, 1992) (Simmons I).

The Corps prepared an EIS and a supplemental EIS. Commenting on the draft EIS, the Illinois Department of Natural Resources (IDNR) opposed the project, but the Corps nevertheless issued the city another permit, precipitating a second Federal action. The district court ruled against the plaintiffs (Simmons v. United States Army Corps of Engineers, No. 96-CV-4246-JPG (S.D. Ill. December 18, 1996) (Simmons II)), and they appealed. During the pendency of that appeal, Glisson filed the present action alleging that the project would violate the Act and do other harm to the environment. Marion filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), arguing, inter alia, (1) that Glisson lacked standing to sue under the Act, (2) that the issues were not ripe for adjudication because Glisson's petition failed to present an actual justiciable controversy, (3) that Glisson's petition failed to state a claim upon which relief could be granted because Marion had complied with its obligations under the Act, and (4) that Glisson's petition failed to state a claim upon which relief could be granted because the Act does not provide for declaratory or injunctive relief. The circuit court granted Marion's motion to dismiss, finding that Glisson lacked standing because (1) article XI, section 2, of the Illinois Constitution of 1970 did not empower Glisson to file a civil action to enforce the Act absent express statutory authorizations to do so, (2) the General Assembly vested the power to implement and enforce the Act in the IDNR and the Attorney General, (3) the General Assembly did not provide statutory authorization for a private person to bring a civil action to enforce the provisions of the Act, (4) the IDNR has promulgated regulations to enforce the Act and Marion complied with those regulations, (5) Glisson, as an individual, does not have standing to enforce the Act, and (6) Glisson's alleged interest in the subject matter of this litigation, which such interest allegedly causes him to feel intellectual, spiritual, moral, and psychic wounds, does not rise to the level of a case or controversy.

During the pendency of the present appeal, the United States Court of Appeals reversed the district court in Simmons II and remanded the cause to the court with directions that the district court void the second permit issued by the Corps. Simmons v. United States Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997). In light of the Seventh Circuit's action, Marion moved to dismiss the present appeal, arguing that it is moot. Specifically, Marion maintains that because the section 404 permit has been voided by the district court, it cannot continue with construction of the dam and reservoir and it has in fact stopped all construction activities. Glisson counters that Marion is still proceeding with condemnation proceedings and is actively pursuing another permit. We find that the present appeal is not moot and hereby deny Marion's motion to dismiss.

On appeal, Glisson argues first that article XI, section 2, of the Illinois Constitution of 1970 gives him standing to bring the present action. Initially, we must address Marion's argument that Glisson has waived this argument by failing to adequately present and plead these issues before the trial court. Marion maintains that Glisson did not argue the applicability of article XI in any pleading and that he raised it for the first time at the hearing on Marion's motion to dismiss. As Glisson points out, however, standing is an affirmative defense, not a requirement of pleading. Contract Development Corp. v. Beck, 255 Ill. App. 3d 660, 627 N.E.2d 760 (1994). It was not incumbent on Glisson to plead facts demonstrating that he had standing. Rather, it was the responsibility of Marion to argue Glisson's lack of standing. We find that Glisson's argument that he has standing under article XI, section 2, of the Illinois Constitution to maintain the present action to be properly before us, and we now turn to an analysis of the merits of the argument.

Glisson argues that he has standing under article XI, section 2, of the Illinois Constitution of 1970 to bring the present action. Specifically, he contends that he has a constitutional right to a healthful environment, that the preservation of endangered and/or threatened species is necessary to the maintenance of such environment, and that Marion's proposed reservoir project will infringe on his right to such environment.

Since its passage, the courts of this state have had few occasions to address the scope and meaning of article XI. Consequently, there is little case law to guide us. We begin our analysis by setting out the provisions of article XI.

Article XI, section 1, provides as follows:

"The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. The General Assembly shall provide by law for the implementation and enforcement of this public policy." Article XI, section 2, provides as follows:

"Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law."

Because there is a paucity of case law interpreting these two sections and because their meaning is relevant to the Disposition of this case, the report of the general government committee of the Sixth Illinois Constitutional Convention is set out here in some detail:

"This proposal recommends that the new Constitution include an Environment Article with four Sections. It generally expresses the Committee's view that there is a vital need for the new Constitution to speak to the problem of environmental pollution and that a constitutional expression ...


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