United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
Magistrate Judge Iain D. Johnston
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.
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.
INJUNCTIVE RELIEF UNDER RCRA
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).
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
the Court is Plaintiffs' request for a mandatory
permanent injunction.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).
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
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.
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).
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 approach is required.
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.”).
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
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).
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 ...