Oh Illinois Supreme Court, how you disappoint me.
For those of you who know me, you probably know that I'm a pretty firm believer in our judicial system and it's ability to uphold the law. That's their job, after all. Working in the legal field for the past several years has, for the most part, encouraged this faith in our legal system. Until today. The Illinois Supreme Court came down with an Opinion today that stops citizens from having a private right of action to enforce compliance with the law.
This should be pretty simple, right? The legislative branch of the government makes the laws, the executive branch enforces them, and the judicial branch interprets the law and punishes lawbreakers. In this particular case, the legislative branch did it's job and passed the laws to protect our environment. The executive branch (Illinois Environmental Protection Agency and the Illinois Department of Natural Resources) ignored the laws and issued a permit that was in clear violation of the law. When brought to the judicial system to interpret the law, the Illinois Supreme Court decided (unanimously) today that one can only enforce against non-permitted activities or violations of a permit, unless one appeals the illegal permit through the administrative review process (Which, it should be noted, the law clearly states this process cannot impair the rights of enforcement of the substantive provisions of that law). And what would you be enforcing, if not the permit? The law perhaps.
What does this mean? Basically, the government can issue illegal permits, and if you catch it in time, you can go through the administrative review process where the government decides on the issue(s) they already decided wrongly on. In this particular case, the permit in question had expired. The suit was brought strictly against current site conditions and the fact that they weren't compliant with the law.
The Opinion states, "A contrary construction of the statute would also impact legitimate reliance by a permitee, and create significant uncertainty by allowing the terms of the permit to be reopened and reconsidered at any time, even years after a reclamation project has been completed in accordance with a permit. We decline to conclude that the legislature intended such an absurd result in enacting section 8.05(a), which would not only call into question the finality of mining permit decisions throughout Illinois, but would undermine the role of IDNR in the permit process."
"The role of IDNR in issuing clearly illegal permits would be undermined- permits that violate the purpose and specific substantive provisions of that very law- no absurd result here. Citizens constitutional right to a healthful environment under the Illinois Constitution is only enforceable if it does not threaten the established interests of mining, I guess. I cannot express my profound disappointment that the Supreme Court read the purpose and provisions of the law right out of the law." Quote from Penni Livingston, lead attorney for Citizens Opposing Pollution, the Plaintiff in the Supreme Court case.
Companies, like ExxonMobil, failed to learn the lesson that most of us learn in early childhood: Clean up after yourself. And while I find it profoundly disappointing, that greed overcomes common sense and common decency, I am far more disappointed in our government: A government that creates the laws, but doesn't have the sense to enforce them, or interpret them as they plainly read and to fulfill the purpose stated.
Here that purpose is to restore the land, which has not happened.
A copy of the Opinion can be found here.