Nuisance and Preemption

In a recent Seventh Circuit decision, the Court affirmed on preemption grounds the dismissal of a nuisance action brought by a village against defendants responsible for cleaning up a hazardous waste cite within that village.   Village of DePue, Illinois v. Exxon Mobil Corporation, No. 07-2311 (7th Cir. Aug. 11, 2008) http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=07-2311&submit=showdkt.  The decision makes some interesting points about the interface between state environmental laws and local nuisance actions.

While the decision addresses a host of issues, the preemption holding and its reasoning begin at page 22. The defendants had entered into a consent order under state law with the Illinois Environmental Protection Agency (IEPA).  There was no dispute that the defendants were complying with that consent order, but the Village was not happy with the pace of the cleanup.  It therefore brought an action for violation of its local nuisance ordinance in Illinois state court, seeking immediate cleanup or fines of $750/day.  The defendants removed the action to federal court based on diversity and argued, among other things, that the nuisance action was preempted by state law because it conflicted with the IEPA consent order.

The Court of Appeals noted that the purpose of the Illinois statute under which the consent order had been entered was to establish a state-wide program, because environmental damages does not respect political boundaries, and environmental problems must be dealt with as a unified whole.  The Court said:  "The Village's application of its nuisance ordinance seeks to address, in a heavy-handed manner, a difficult environmental problem that certainly is not only of local concern.  If the Village were permitted to apply its nuisance ordinance to force Exxon to complete immediately the cleanup of the site, on penalty of $750 per day for noncompliance, then it could prevent compliance with the measured cleanup process adopted by Illinois through the Consent Order under the authority of Illinois law.  Such a result would frustrate the purpose of the Illinois Act, which permits the Illinois Attorney General to enter consent orders precisely like this one ...." (slip op. at 24, citations omitted).  In sum, "The Village's application of its nuisance ordinance in this case is overreaching because it attempts to regulate an environmental hazard that is not local in nature and that already is subject to a cleanup under the authorization and direction of the state."  (Id., pp. 25-26.)

Interesting points about this ruling include the fact that the site was apparently entirely within the Village.  Hence, the Court's point about being a matter of more than local concern means something broader than physical boundaries; rather, the Court is recognizing the state interest in setting broader policies affecting environmental interests generally.

Second and similarly, it would not have been physically impossible to comply with both the Consent Order and the Village's desire for more rapid action - the defendants could have sped up the cleanup.   So again, the Court is viewing preemption, including conflict preemption, as meaning more than such impossibility.  Conflict preemption includes failure to respect the state law's setting of priorities and "measured" means of accomplishing them, frustrating the purpose of state law.

Finally, the Court could identify the preemptive scope of the state law and Consent Order in the context of a Rule 12(b)(6) motion  - over the protestations of the appellant at oral argument, who claimed that the defendants should have to spell out actual conflicts, in contested proceedings -

www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=07-2311&submit=showdkt&yr=07&num=2311

This decision thus provides an example of how respect for a legislature's state-wide policy balancing and solutions supersedes efforts to use nuisance law to serve parochial concerns or to impose a different balance.  Whether examined from the perspective of preemption, separation of powers, or simply a reason not to expand existing common law, the contents and goals of a state-wide regulatory framework are important factors to consider when assessing the viability of a nuisance action touching upon the same matters as that framework.