You Say Yes, I Say No, You Say Stop…

Posted on January 11, 2016 by Robert M Olian

Seth Jaffe’s recent post about the tension between Colorado’s governor and attorney general over who has the right to speak on behalf of Colorado in the Clean Power Plan litigation brought to mind the very first piece of environmental litigation I ever worked on, Village of Wilsonville v. SCA Services. In the late 1970s, SCA (which later became part of Chemical Waste Management) began operating a large hazardous waste landfill, fully permitted by Illinois EPA, in Wilsonville, Illinois, and the residents were predictably displeased. (Hint to those of you who operate similar NIMBY-ish facilities – don’t do as SCA did and disseminate marketing materials displaying the site as the “bullseye target” on a regional map showing concentric circles of distances to the facility.)

Not satisfied with some pretty effective self-help efforts (e.g. the Village dug a three-foot wide trench for “sewer repairs” across the only road into the site, thereby halting all truck traffic into and out of the facility), the Village sued SCA and Illinois EPA (the permitting agency) seeking permit revocation and a halt to operation of the facility. The case got off to an unusual start in the trial court (our firm was not retained until the unsuccessful appeal to the Illinois Supreme Court) when then-Attorney General William Scott, who had appeared in the case on behalf of Illinois EPA, stuck his finger in the air, felt which way the wind was blowing, and abandoned the defense of Illinois EPA to file his own complaint and join with the Village against the defendants, including the State agency. Perhaps unlike Colorado, Illinois law is pretty clear that the Attorney General has independent enforcement powers when it comes to environmental matters, so Scott’s volte-face didn’t cause much of a stir other than at Illinois EPA, which had never before been left hanging in the wind like this.

Bill Scott probably remains the Illinois Attorney General best known for environmental enforcement; the first line in his obituary correctly notes that he “achieved an international reputation for his battle on behalf of the environment during his four terms” as Attorney General. Scott tried but never made it to the Governor’s chair, though he clearly had what it takes. Like Otto Kerner, Dan Walker, George Ryan, and Rod Blagojevich - Illinois governors #33, 36, 39 and 40 respectively - Scott later served time in federal prison.

Over the years, notable cases of tension between disparate agencies of the same sovereign have spread from Wilsonville to Colorado to China. A recent news article notes, “Prosecutors in eastern China have filed a lawsuit against a county-level environmental protection department, accusing it of ‘failing to fulfil its regulatory duties’ in its supervision of a local sewage firm.” Apparently the United States is a successful exporter of something; I’m not sure what to call it, but it isn’t as desirable as the Fab Four or iPhones.