AMERICAN BOTTOM CONSERVANCY v. U.S. ARMY CORPS OF ENGINEERS (June 14, 2011)

Waste Management of Illinois, Inc. operates a landfill near Madison, Illinois. The landfill is just southwest of the Horseshoe Lake State Park. Waste Management wants to build a second landfill even closer to the park. In order to do so, it wants to destroy approximately 18 acres of wetlands. Waste Management has applied to the Illinois Environmental Protection Agency for a permit to build the landfill. That application is pending. Waste Management also applied to the Army Corps of Engineers for a permit to destroy the wetlands. That permit was granted on the condition that Waste Management create twice as many wetlands as they destroy. American Bottom Conservancy, an environmental group, brought suit challenging the permit. Judge Murphy (S.D. Ill.) dismissed the suit on the grounds that the Conservancy failed to establish standing. The Conservancy appeals.

In their opinion, Circuit Judges Posner and Manion and District Judge Lefkow reversed. The only issue before the Court was standing. To establish standing, a plaintiff must establish that granting the relief sought will avert or mitigate injury to him caused by the defendants. The Conservancy filed affidavits from several of its members who enjoy watching the birds and wildlife in the park, particularly at the southern end near the wetlands. They assert that Waste Management's wetland destruction will adversely affect the wildlife population and, therefore, their enjoyment of the park. The Court concluded that plaintiff’s member’s reduced enjoyment was an injury caused or to be caused by Waste Management. The Court also found that the injury was not implausible. The habitat reduction will likely negatively affect the wildlife population and the replacement wetlands will not be able to support a new wildlife population for some time. If the permit is voided, the wetlands and the wildlife population will be preserved. That is enough to confer standing on the Conservancy. The Court rejected Waste Management's alternative argument to find in its favor on the merits. It an appellee wants a judgment affirmed on an alternative ground, it need not file a cross-appeal. If, however, an appellee wants a judgment changed (here, from a dismissal without prejudice to a dismissal with prejudice), it must file a cross-appeal. Waste Management did not.