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Lajim, LLC v. General Electric Co.

United States District Court, N.D. Illinois, Western Division

September 7, 2017

LAJIM, LLC, et al., Plaintiffs,
General Electric Co., Defendant.


          U.S. Magistrate Judge Iain D. Johnston


         From the moment the parties consented to the undersigned's jurisdiction, the Court has read, re-read, analyzed and re-analyzed the language of the Resource Conservation and Recovery Act (“RCRA”), see 42 U.S.C. § 6901 et seq., so that it could precisely comply with a complicated statutory scheme that attempts to balance a host of competing interests involved in the important function of remediating toxic contaminants. That should be no surprise. A federal court is duty bound to follow Congressional mandates, even when the result reached is different than what the court would have liked. See Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1325 (7th Cir. 1992) (“[C]ourts have no business bending one statute out of shape because litigants (or even the judges) believe that Congress should have written another statute differently.”); “A judge who likes every outcome he reaches is very likely a bad judge.” Neil Gorsuch, Remarks Upon Being Nominated to the U.S. Supreme Court (Jan. 31, 2017) in Chi.

         Trib., Jan. 31, 2017, (last visited Sept. 7, 2017). But, sometimes, Congressional mandates can be a little hazy. RCRA is an example of a foggy statute. So, not surprisingly, the Court looked to controlling Seventh Circuit case law for guidance as well. In this regard, the Court was informed by the Seventh Circuit's excellent and helpful decision in Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011). Tellingly, the Adkins opinion begins with an explication of RCRA. Again, this Court re-read and re-analyzed Adkins to guide it as it proceeded down the murky path of RCRA litigation. Indeed, this Court scrupulously followed Adkins' guidance in many ways. For example, as counseled by Adkins, this Court coordinated with the Fifteenth Judicial Circuit, Illinois Attorney General's Office and Illinois Environmental Protection Agency (“IEPA”). Adkins, 644 F.3d at 506; Dkts. #123, 138 at 10 (soliciting an amicus brief), 142-43. As noted later, this coordination proved invaluable to obtain the views of the IEPA. Likewise, this Court ensured that it developed a sufficient factual record of all the information it needed to properly evaluate Plaintiffs' request for mandatory permanent injunctive relief. See Adkins, 644 F.3d at 496 (“These and other relevant issues may be properly addressed on remand with more information than is available from the limited record on a motion to dismiss for failure to state a claim.”); Dkt. #155 at 2 (rescheduling the evidentiary hearing to allow time to review Defendant's Remedial Action Plan and the State's anticipated amicus brief). Again, as noted later, the facts developed at the evidentiary hearing were critical to this Court's determination. And, finally, the Court held an evidentiary hearing to press Plaintiffs to provide evidence why they should be afforded the relief requested. Adkins, 644 F.3d at 506 (“If [the state agency] should achieve comprehensive relief in its state court lawsuits, the federal judge will be entitled to press the citizen-plaintiffs as to what more they hope to accomplish in this suit.”); Dkt. #138 at 10 (setting an evidentiary hearing to determine whether injunctive relief is appropriate in light of the Consent Order). Only after hearing from the parties' respective experts, viewing the voluminous record as a whole and questioning Plaintiffs' counsel and expert, the Court was able to confidently and comfortably come to the conclusion that, based on the facts presented and in the exercise of its discretion, the Court will not grant a mandatory permanent injunction. Plaintiffs have simply failed to meet their high burden.


         With exceedingly clunky language, under certain limited circumstances, RCRA empowers federal district courts to enter mandatory permanent injunctions to require companies to remediate their contamination. Because the precise wording of the statute is important, the language is quoted here. But because the Court is not sadistic, only the relevant provisions are quoted:

[A] person may commence a civil action on his own behalf . . . against any person . . . including any. . . past or present owner or operator of a . . . storage . . . facility, who has contributed. . . to the past or present handling [or] storage . . . of any . . . hazardous waste which may present an imminent and substantial endangerment to health or the environment. . . The district court has jurisdiction . . . to restrain any person who has contributed. . . to the past. . . handling [or] storage . . . of any . . . hazardous waste . . . [or] order[ ] such person to take such other action as may be necessary, or both. . .

42 U.S.C. § 6972(a)(1)(B), (a)(2).

         Despite the awkward wording, courts have consistently found that all types of injunctive relief are available. Interfaith Community Organization v. Honeywell Int'l, Inc., 726 F.3d 403, 411 n.3 (3d Cir. 2013); Litgo New Jersey Inc. v. Commissioner of New Jersey Department of Environmental Protection, 725 F.3d 369, 393 (3d Cir. 2013); Voggenthaler v. Maryland Square LLC, 724 F.3d 1050, 1056 (9th Cir. 2013) (“RCRA, in 42 U.S.C. § 6972, authorizes citizen suits for two types of injunctive relief - an injunction ordering the responsible parties to clean up the contamination and an injunction ordering them to stop any further violations.”).

         Before the Court is Plaintiffs' request for a mandatory permanent injunction.[1]To obtain a permanent injunction, a plaintiff must establish the following: (1) it has suffered an irreparable injury; (2) legal remedies, such as damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and the defendant, an equitable remedy is warranted; and (4) the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

         In this case, this Court has already stated that Plaintiffs must establish all these elements. LAJIM, LLC v. General Electric Co., 13 CV 50348, 2016 U.S. Dist. LEXIS 137448, at *14-15 (N.D. Ill. Oct. 4, 2016). The Court reiterates its view that Plaintiffs must establish each element. To be sure, some cases hold that a civil plaintiff need not meet all the traditional elements of injunctive relief if a statute authorizes the relief. See, e.g., Illinois Bell Telephone Co. v. Illinois Commerce Commission, 740 F.2d 566, 571 (7th Cir. 1984). But those cases have been limited; they apply only when the specific statutory language at issue clearly requires injunctive relief for a particular set of circumstances. See Bedrossian v. Northwestern Memorial Hospital, 409 F.3d 840, 843 (7th Cir. 2005). This limitation is consistent with subsequent United States Supreme Court case law. See, e.g., eBay, 547 U.S. at 391 (“[A] major departure from the long tradition of equity practice should not be lightly implied.”). When a statute merely authorizes a district court to grant injunctive relief, rather than requires the relief, a plaintiff must meet all the traditional elements of injunctive relief. Daveri Development Group, LLC v. Village of Wheeling, 934 F.Supp.2d 987, 1007 (N.D. Ill. 2013). Because RCRA authorizes, but does not require, injunctive relief, Plaintiffs must establish all the traditional elements for a permanent injunction, including irreparable harm.

         A showing of irreparable harm is an essential requirement of injunctive relief. Alabama v. United States Army Corp. of Engineers, 424 F.3d 1117, 1133 (11th Cir. 2005) (irreparable injury is sine qua non of injunctive relief). Indeed, irreparable harm is the most important requirement. Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002). For harm to be “irreparable, ” it must be both certain and great, not merely serious or substantial. New Mexico Department of Game and Fish v. United States Department of Interior, 854 F.3d 1236, 1250 (10th Cir. 2017).

         As this Court has previously held, because Plaintiffs seek an order requiring General Electric to investigate and remediate (which might be different than that required by the IEPA under the Consent Order), Plaintiffs must meet an even higher standard for this mandatory injunction. LAJIM, LLC v. General Electric, 13 CV 50348, 2016 U.S. Dist. LEXIS 137448, at *16 (N.D. Ill. Oct. 4, 2016) (citing Schrier v. University of Colorado, 427 F.3d 1253, 1261 (10th Cir. 2005) and Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011)). Mandatory injunctions are “cautiously viewed and sparingly issued.” Graham v. Medical Mutual of Ohio, 130 F.3d 293, 295 (7th Cir. 1997).


         Throughout this litigation, General Electric's counsel has passionately argued that this Court should not grant Plaintiffs' requested injunctive relief that would interfere with the Consent Order. General Electric asserted that this Court should deny the request based on the Consent Order reached in the parallel state-court proceedings, regardless of what label is placed on the reasoning for the denial. Dkt. #79 (October 7, 2015 Report of Proceedings, pp. 72, 103) (“This court has a duty to avoid duplication of suits, to avoid conflicting orders. . .”; “whether you call it mootness, diligent prosecution, lack of entitlement to injunctive relief. . .”). The Court understands that parties are usually more interested in judgements than rationales. But this Court must properly analyze the requested relief, and a more nuanced[2] approach is required.

         The issue is not simply that a parallel state-court proceeding exists. If that were the main focus, then Adkins would not have scotched any reliance on the various abstention doctrines. Adkins, 644 F.3d at 506 (“For the reasons we have explained, we believe the congressional policy choices reflected in the RCRA citizen-suit provisions remove the abstention options from the district court's toolbox.”).

         Instead, the issue is what remedies are sought and what relief has been granted in those parallel state-court proceedings. Specifically, this Court must focus on whether those parallel state-court proceedings are repairing Plaintiffs' injury. If they are, then a mandatory permanent injunction should not issue.

         In conducting the analysis, the facts that courts have considered under a “diligent prosecution” inquiry are relevant to the irreparable harm analysis. Just as the same facts can be used by a plaintiff to plead a variety of claims, the same facts can be used by a defendant to establish a multitude of defenses. The Court disagrees with General Electric's conflation of the various defenses into an amalgam barring Plaintiffs' claims and relief. But the Court agrees with General Electric that when it reviews the record from December 2010 - when the Consent Order was entered - to today, the requested mandatory permanent injunction under RCRA is not warranted. Dkt. #79 (October 7, 2015 Report of Proceedings, p. 103).

         Throughout the litigation, Plaintiffs have strenuously argued that the IEPA's analysis was flawed from the beginning, and, consequently, the horizontal and vertical extent of the contamination has not been properly determined. Dkt. #38 at 20-24, 34-38 (Plaintiffs' memorandum in support of summary judgment). But at the injunction hearing, General Electric's expert witness ...

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