Opposition Brief — LAJIM, LLC, et al., Petitioners v. General Electric Company

No. 18-1564

In the

Supreme Court of the United States

LAJIM, LLC, et al.,

Petitioners,

v.

GENERAL ELECTRIC COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Seventh Circuit

BRIEF IN OPPOSITION

A nthony L. Osterlund

Counsel of Record

Mark A. Norman

Nathan L. Colvin

Vorys, Sater, Seymour and Pease LLP

301 East Fourth Street

Great American Tower, Suite 3500

Cincinnati, Ohio 45202

(513) 723-4000

alosterlund@vorys.com

Counsel for Respondent

290010

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Whether the Seventh Circuit correctly held that the

Resource Conservation and Recovery Act, which permits

a district court to enter a mandatory injunction “as may

be necessary,” 42 U.S.C. § 6972(a)(2), does not remove

the discretion district courts ordinarily possess to decide

whether to grant injunctive relief.

ii

RULE 29.6 STATEMENT

Respondent General Electric Company (“GE”) is a

publicly-traded company, and no publicly-held company

owns 10% or more of its shares.

iii

RELATED CASES

LAJIM, LLC, et al. v. General Electric Company, No.

13-CV-50348 (N.D. Ill.), Memorandum Opinion and Order

Granting Motion for Summary Judgment in Part, entered

on December 18, 2015, available at Dkt. 88.

LAJIM, LLC, et al. v. General Electric Company, No.

13-CV-50348 (N.D. Ill.), Memorandum Opinion and Order

Denying Injunctive Relief, entered on September 7, 2017,

available at Dkt. 181.

LAJIM, LLC, et al. v. General Electric Company,

No. 13-CV-50348 (N.D. Ill.), Order Denying Petitioner’s

Motion for Reconsideration, entered on November 7, 2017,

available at Dkt. 200.

LAJIM, LLC, et al. v. General Electric Company,

No. 13-CV-50348 (N.D. Ill.), Final Judgment, entered on

February 15, 2018, available at Dkt. 215.

LAJIM, LLC, et al. v. General Electric Company,

No. 13-CV-50348 (N.D. Ill.), Order Denying Petitioners’

Motion for Indicative Ruling and Reconsideration, entered

on August 14, 2018, available at Dkt. 222.

LAJIM, LLC, et al. v. General Electric Company,

Nos. 18-1522 & 18-2880 (7th Cir.), Opinion Affirming

District Court, entered on March 4, 2019, available at

BL-34.

LAJIM, LLC, et al. v. General Electric Company,

Nos. 18-1522 & 18-2880 (7th Cir.), Final Judgment, entered

on March 4, 2019, available at BL-35.

iv

LAJIM, LLC, et al. v. General Electric Company,

Nos. 18-1522 & 18-2880 (7th Cir.), Order Denying Petitions

for Rehearing and for Rehearing En Banc, entered on

March 29, 2019, available at BL-38.

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

A. The Resource Conservation and Recovery

Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. The Illinois Environmental Protection

Agency Consent Order . . . . . . . . . . . . . . . . . . . . . 4

C. The District Court Proceedings . . . . . . . . . . . . . 6

D. The Seventh Circuit Proceedings . . . . . . . . . . . 10

THE PETITION SHOULD BE DENIED . . . . . . . . . 11

I.

The Decision Below is Consistent With

the Text of RCRA and This Court’s

Prior Precedents . . . . . . . . . . . . . . . . . . . . . . . . . 11

vi

Table of Contents

Page

II. T he D e c i s ion Below i s C on s i st ent

With Decisions of Other Circuits . . . . . . . . . . . . 15

III. The Fact-Bound Decision Below is Correct

and Presents a Poor Vehicle for this

Court’s Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Adkins v. VIM Recycling, Inc.,

644 F.3d 483 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 16

Commodity Futures Trading v. Hunt,

591 F.2d 1211 (7th Cir. 1979) . . . . . . . . . . . . . . . . . . . 16

Communist Party of Ind. v. Whitcomb,

409 U.S. 1235 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ctr. for Biological Diversity, Inc. v.

BP America Prod. Co.,

704 F.3d 413 (5th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 15

Dickerson v. Administrator, EPA,

834 F.2d 974 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . 13

Easley v. Cromartie,

532 U.S. 234 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

eBay Inc. v. Merc Exchange, L.L.C.,

547 U.S. 388 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Environmental Defense Fund, Inc. v. Lamphier,

714 F.2d 331 (4th Cir. 1983) . . . . . . . . . . . . . . . . . . . . 17

EPA v. Environmental Waste Control,

917 F.2d 327 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 16

viii

Cited Authorities

Page

Gache v. Town/Village of Harrison,

813 F. Supp. 1037 (S.D.N.Y. 1993) . . . . . . . . . . . . . . . 16

General Electric Co. v. Litton Industrial

Automation Systems, Inc.,

920 F.2d 1415 (8th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 3

Grace Christian Fellowship v. KJG Invs. Inc.,

Case No. 07-C-0348, 2009 U.S. Dist.

LEXIS 76954 (E.D. Wisc. Aug. 7, 2009) . . . . . . . . . .15

Hecht Co. v. Bowles,

321 U.S. 321 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hodgins v. Carlisle Engineered Prods.,

No. 1:02-CV-01454, 2006 U.S. Dist.

LEXIS 11321 (N.D. Ohio Mar. 2, 2006) . . . . . . . . . . 16

Illinois v. City of Milwaukee,

599 F.2d 151 (7th Cir. 1979) . . . . . . . . . . . . . . . . . . . . 16

Maine People’s Alliance v. Mallinckrodt, Inc.,

471 F.3d 277 (1st Cir. 2006) . . . . . . . . . . . . . . . . . . . . 15

Meghrig v. Kfc W.,

516 U.S. 479, 483 (1996) . . . . . . . . . . . . . . . . . . . . . 3, 14

Porter v. Warner Holding Co.,

328 U.S. 395 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

ix

Cited Authorities

Page

Trinity Indus. v. Chi. Bridge & Iron Co.,

735 F.3d 131 (3d Cir. 2013) . . . . . . . . . . . . . . . . . . 13, 15

United States v. Bethlehem Steel Corp.,

38 F.3d 862 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . 16-17

United States v. Johnston,

268 U.S. 220 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Marine Shale Processors,

81 F.3d 1329 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 15

United States v.

Oakland Cannabis Buyers’ Co-Op.,

532 U.S. 483 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 12, 14

STATUTES AND OTHER AUTHORITIES

42 U.S.C. § 6902(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. § 6972(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. § 6972(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . passim

42 U.S.C. § 9601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

x

Cited Authorities

Page

42 U.S.C. § 9604(e)(5)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Sup. Ct. Rule 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1

INTRODUCTION

This Court, backed by hundreds of years of common

law history, has consistently recognized that equity courts

have discretion to decide whether to issue injunctive relief.

This is especially true where the requested injunctive

relief is mandatory, i.e., it does not restrain but rather

requires the enjoined party to do some affirmative act.

The lone exception to this long-standing rule is if Congress

has displaced the court’s discretion through a “clear and

valid legislative command.” Porter v. Warner Holding Co.,

328 U.S. 395, 398 (1946).

In this Resource Conservation and Recovery Act

(“RCRA”) case, the district court and Seventh Circuit

held that RCRA contains no such legislative command,

as indicated by the fact that RCRA expressly requires

the district court to decide if an injunction is “necessary”

before its issuance. 42 U.S.C. § 6972(a)(2). In doing so, the

decision below joined the First, Third, and Fifth Circuits

in holding that RCRA does not require a court to enter

an injunction upon a finding of RCRA liability. There is

no decision to the contrary, meaning there is no circuit

split for this Court to resolve. Petitioners’ attempts to

manufacture a conflict by citing to non-RCRA cases is

unavailing because those cases do not analyze RCRA, or

even similar statutory language, and they do not stand

for the proposition offered by Petitioners.

The remainder of Petitioners’ arguments amount to

factual disputes that do not merit this Court’s attention.

Petitioners, for example, contend that a Consent Order

resolving a separate action brought by Illinois in state

court “is doing nothing.” Pet. 5. But the decision below

found that the Consent Order required investigation and

2

remediation, and Illinois informed the district court that

it was performing rigorous oversight of the site, including

by managing potential risks of exposure. App. 5, 10.

Likewise, Petitioners contend that they presented

evidence in support of an injunction requiring GE to

conduct a cleanup. Pet. 5-6. But as the district court and

Seventh Circuit found, Petitioners did no such thing. In

fact, “when asked by the district court judge what specific

cleanup he recommended, [Petitioners’] expert declined

to make a recommendation.” App. 10.

On these facts, the district court was well within its

discretion to decide that Petitioners failed to establish the

need for an injunction that required GE to do more than

what was already required by Illinois and the Consent

Order. In any event, this Court does not grant certiorari

to review unanimously affirmed factual findings.

It is undisputed that the district court “provided

[Petitioners] with numerous opportunities to present

evidence that the state proceedings were not adequately

protecting the public and the environment.” App. 25.

That Petitioners utterly failed to do so does not warrant

jettisoning hundreds of years of jurisprudence and the

plain text of RCRA to permit Petitioners to obtain relief

without evidence. With no conflict to review, the Court

should deny the petition for a writ of certiorari.

STATEMENT OF THE CASE

A. The Resource Conservation and Recovery Act

RCRA allows a citizen to commence a civil action

against a person “ who has contributed or who is

3

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste which may present an imminent and

substantial endangerment to health or the environment.”

42 U.S.C. § 6972(a)(1)(B). Among other remedies, it

provides the district court with jurisdiction “to restrain

any person who has contributed or who is contributing

to the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazardous waste

referred to in paragraph (1)(B), to order such person to

take such action as may be necessary, or both . . . .” Id.,

§ 6972(a)(2) (emphasis added).

While “RCRA is a comprehensive environmental

statute that governs the treatment, storage, and disposal

of hazardous waste,” it “is not principally designed

to effectuate the cleanup of toxic waste sites or to

compensate those who have attended to the remediation

of environmental hazards.” Meghrig v. Kfc W., 516 U.S.

479, 483 (1996) (citations omitted) (emphasis added). That

is the purpose of the Comprehensive Environmental

Response, Compensation, and Liability Act (“CERCLA”),

42 U.S.C. § 9601, et seq. See id. (citing General Electric

Co. v. Litton Industrial Automation Systems, Inc., 920

F.2d 1415, 1422 (8th Cir. 1990) (the “two . . . main purposes

of CERCLA” are “prompt cleanup of hazardous waste

sites and imposition of all cleanup costs on the responsible

party.”)). (As discussed below, CERCLA is not at issue

here because Petitioners dismissed their CERCLA

claim.) Instead, the “primary purpose” of RCRA “is to

reduce generation of hazardous waste and to ensure the

proper treatment, storage, and disposal of waste which

is nonetheless generated, ‘so as to minimize the present

and future threat to human health and the environment.’”

Id. (quoting 42 U.S.C. § 6902(b)).

4

B. The Illinois Environmental Protection Agency

Consent Order

1. GE operated a manufacturing plant in Morrison,

Illinois from 1949 to 2010, where it primarily manufactured

automotive and appliance parts. App. 3. GE used

chlorinated organic solvents such as trichloroethylene

(“TCE”), perchloroethene (“PCE”), and trichlorethane

(“TCA”) to clean those parts until 1994, when it switched

to a soap-like solution, at which time no further waste was

generated. App. 3-4.

2. In 1986, chlorinated solvents were detected in three

of Morrison’s municipal wells to the southeast of the GE

plant. App. 4. The Illinois Environmental Protection

Agency (“IEPA”) installed monitoring wells to analyze the

ground water and completed a remedial investigation in

1987 that concluded that the GE plant was the source of

the solvents. App. 4. Since then, IEPA and GE have been

involved in remediation of the site.

In 1988, GE installed additional monitoring wells

and an air stripper on one of the wells to treat water

by reducing the levels of solvents below the maximum

contamination level (“MCL”). App. 4. The other two wells

were sealed. App. 4. GE also completed a second remedial

investigation that identified elevated concentrations of

solvents beneath the plant’s former degreasing operations.

App. 4. Under IEPA supervision, GE continued to monitor

and sample groundwater, and submitted reports of results

to IEPA. App. 4.

In 1994, GE began a third remedial investigation of

the groundwater at and downgradient from the plant

5

under IEPA supervision. App. 4. According to GE’s 2001

investigation report, solvents in the groundwater had

significantly decreased and would continue to naturally

attenuate (reduce) to below the MCL. App. 4-5. The

investigation also showed that Rock Creek was a natural

groundwater divide that would prevent the contamination

from migrating any further. App. 5.

In addition, GE completed a regulatory closure of

the former RCRA container storage area at the GE

plant, where wastes were stored until 1986. This included

sampling to delineate solvents in soil and installation

and operation of a soil vapor extraction (SVE) system to

treat impacted soils. Dkt. 59-2, PageID #: 4817. The SVE

system operated from March 1994 until July 1997, when

GE shut it down due to successful remediation. Id.

3. Given the air stripper and a City of Morrison

ordinance prohibiting the use of groundwater as drinking

water, in 2001, GE proposed allowing the remaining

contamination to continue to naturally attenuate. App.

5. IEPA disagreed and instead “concluded that active

remediation of the site would be appropriate.” App. 5.

The Illinois Attorney General commenced suit against

GE in Illinois state court under various provisions of the

Illinois Environmental Protection Act seeking “to recover

costs it had incurred as well as an injunction requiring that

GE investigate the nature and extent of the contamination

and then perform remediation.” App. 5. In 2010, GE and

Illinois entered into a Consent Order, whereby GE agreed

to conduct further investigation and to submit a series

of reports to IEPA that would culminate in a Remedial

Action Plan (“RAP”) to meet remedial objectives. App.

6

5-6. That same year, the City of Morrison passed an

ordinance prohibiting the use of groundwater and the

installation of wells in the affected area. App. 6.

4. Pursuant to the Consent Order, GE installed

monitoring wells and then completed a Focused Site

Investigation Report (“FSI”) in 2013. That report showed

that while solvents had migrated to Rock Creek, wells

on the other side of Rock Creek either did not contain

solvents or did at a level below the MCL, meaning that

the contamination was contained. App. 6. IEPA approved

the FSI in 2015 and “determined that GE ‘adequately

defined the nature and extent of the contamination.’”

App. 6. In August 2016, IEPA conditionally reviewed GE’s

revised Remedial Objectives Report (“ROR”), outlining

the objectives for remediation. App. 6, 75-76.

In March 2017, GE submitted a proposed Remedial

Action Plan (“RAP”) to IEPA. App. 6. IEPA denied that

proposal in June 2017. App. 7. At the time of the relevant

hearing in the litigation below, GE’s revised RAP was

under consideration by IEPA. App. 7, 10. That RAP was

approved in March 2018, after the district court’s order

denying injunctive relief. App. 7, 10-11.

C. The District Court Proceedings

1. Petitioner Lowell Beggs purchased a golf course

near the GE plant in 2007, and the golf course was

subsequently operated by Petitioner LAJIM, LLC. App. 7.

Beggs and his companion, Petitioner Martha Kai Conway,

then moved into a home next to the golf course. Id. Beggs

was fully aware of the contamination before he purchased

the land. App. 7-8.

7

2. In 2013, Petitioners commenced this litigation

in the Northern District of Illinois, asserting claims

under RCRA, CERCLA, and state common law. App.

8. The parties then engaged in “extensive discovery,”

leading up to cross-motions for summary judgment.

App. 8. GE conceded that two elements of the RCRA

claim—generation of hazardous waste and contribution

to the same by GE—were satisfied, and the district

court concluded that the contamination “may present

an imminent and substantial danger to health or the

environment” thereby satisfying the third element of a

RCRA claim. App. 8-9. The district court dismissed the

state law claims as untimely. App. 9.

Although the district court found the RCRA claim

satisfied, Petitioners asked the district court to defer

consideration of whether they were entitled to a mandatory

injunction requiring cleanup under RCRA. App. 9.

“Over the next two years, the district court considered

[Petitioners’] request for a mandatory injunction in a

number of hearings and a series of opinions.” App. 9.

In October 2016, the district court held that the

pending state court Consent Order did not prevent it from

entering a mandatory injunction, finding that the question

“was not whether it could grant relief but whether it

should.” App. 9 (emphasis in original). Because Petitioners

had not yet offered any facts to demonstrate that the

Consent Order was not already remedying any potential

risk posed by the contamination, the district court ordered

an evidentiary hearing. App. 9; see also App. 92 (“At this

point, the Court needs facts to determine whether the

extraordinary remedy of mandatory injunctive relief is

appropriate under the specific facts of this case and if so,

what that relief would entail.”).

8

Put another way, as the Seventh Circuit explained,

“the district court informed the parties repeatedly that

it was looking for evidence of harm not already being

addressed through the state proceeding and for what

exactly plaintiffs wanted the court to order GE to do to

address that harm.” App. 20 (emphasis in original). To

that end, the district court also invited “IEPA and Illinois

Attorney General to provide their views on the progress

under the Consent Order and whether the court should

order injunctive relief under the RCRA.” App. 9.

3. The State of Illinois informed the district court that

it did not believe injunctive relief was necessary because

it would overlap with the work already underway, which

included “site investigation, monitoring and payment of

costs as well as an order barring further endangerment .

. . [and] some type of remedial effort.” App. 9-10. Illinois

also insisted that these actions were “‘being done with

diligence and rigorous oversight by the Illinois EPA,’

and that injunctive relief ‘may result in a clean-up that

is inconsistent with the clean ups of other contaminated

sites in Illinois.’” App. 10.

4. Follow ing the submission from Illinois, the

district court held a two-day evidentiary hearing, at

which both parties presented expert testimony. App.

10. Petitioners did not present evidence in favor of any

additional remedial measures, but instead contended

“that any remedial measures would be premature at

this stage because the extent of the contamination has

not been properly determined.” App. 59. Petitioners and

their expert, however, never “tested the groundwater or

soil” on their own. App. 61. Instead, Petitioners’ expert

critiqued GE’s investigation and “testified that additional

9

investigation was necessary before he could opine on

the proper remediation.” App. 20. Indeed, “when asked

by the district court judge what specific cleanup he

recommended, [Petitioners’] expert declined to make a

recommendation.” App. 10.

GE’s expert, in contrast, “provided reasonable,

rational and credible bases explaining why certain

actions were taken and others were not” with regard

to the investigation of the contamination, as well as its

remediation plans. App. 10, 27.

5. The district court denied injunctive relief in

September 2017. App. 50. In doing so, the court examined

whether the work under the Consent Order was “repairing

[Petitioners’] injury” and whether Plaintiffs had

established that additional investigation was necessary.

App. 57. The district court concluded that Petitioners were

not entitled to injunctive relief because they did not show

that GE’s “investigation into the site was inadequate,” as

indicated in part by the fact that “IEPA is satisfied with

General Electric’s investigation to date and has moved

on to evaluating what remedial measures are necessary

for this site.” App. 59, 70-71. The district court concluded

that Petitioners had failed to demonstrate that their

“injuries are [not] being remedied in the parallel statecourt proceeding.” App. 70.

The district court denied Petitioners’ motion for

reconsideration on November 7, 2017, and Petitioners

later voluntarily dismissed their CERCLA claims, and

appealed the district court’s denial of RCRA injunctive

relief decision to the Seventh Circuit. App. 10, 46-47.

10

Then, in March 2018, Petitioners filed a combined

Rule 62.1 motion for an indicative ruling and a second

motion for reconsideration based on IEPA’s subsequent

approval of GE’s Remedial Action Plan. App. 11. The

district court denied that motion because the approval

of the RAP did not constitute newly discovered evidence

since it did not exist at the time of the court’s decision.

App. 41. Further, the district court also denied the motion

because the evidence would not alter its decision given

that Petitioners were using it to argue that the district

court should have ordered further cleanup, but they still

had not offered any evidence of what type of cleanup was

necessary. App. 42-43.

D. The Seventh Circuit Proceedings

The Seventh Circuit unanimously affirmed the district

court’s decision on March 4, 2019. App. 1. The Seventh

Circuit held that the district court was right to find that an

injunction does not necessarily follow just because plaintiff

establishes RCRA liability. App. 15. Further, it held that

the district court was also correct to require Petitioners

to establish that injunctive relief was “necessary” under

RCRA. App. 26. In affirming the decision, the Seventh

Circuit noted that, on appeal, Petitioners did not even

“directly challenge the district court’s factual findings”

regarding the sufficiency of the investigation conducted by

GE in conjunction with Illinois. App. 20. With the district

court’s factual findings unchallenged, the Seventh Circuit

further noted that “[i]n spite of the district court’s multiple

inquiries to [Petitioners’] expert as to what remedy

he proposed [in addition to the Consent Order], he did

not make a recommendation, leaving the court without

guidance.” App. 26. As a result, the Seventh Circuit

11

found the “district court did not abuse its discretion in

concluding [Petitioners] had not carried their burden to

establish mandatory injunctive relief was necessary under

the RCRA.” App. 27.

The Seventh Circuit subsequently denied Petitioners’

petitions for rehearing and rehearing en banc. App. 157.

THE PETITION SHOULD BE DENIED

I.

The Decision Below is Consistent With the Text of

RCRA and This Court’s Prior Precedents

Petitioners first argue that the Seventh Circuit’s

holding that RCRA does not require the issuance of

a mandatory injunction following a finding of RCRA

liability conflicts with this Court’s decision in United

States v. Oakland Cannabis Buyers’ Co-Op., 532 U.S.

483, 497-98 (2001). Pet. 23-24. Petitioners specifically

argue that Oakland Cannabis—which they have never

before cited—stands for the proposition that “[w]hen

an injunction is the only statutory remedy, a ‘[d]istrict

[c]ourt lack[s] discretion because an injunction [is] the only

means of ensuring compliance.’” Pet. 24 (quoting 532 U.S.

at 497). This argument is inapposite for several reasons.

First, Oakland Cannabis did not hold that a district

court must issue an injunction. It held the opposite: “The

Cooperative is also correct the District Court in this case

had discretion . . . . Because the District Court’s use of

equitable power is not textually required by any ‘clear

and valid legislative command,’ the court did not have to

issue the injunction.” 532 U.S. at 496.

12

Second, this Court has consistently held that district

courts have extraordinary discretion in deciding whether

to issue an injunction. See, e.g., Hecht Co. v. Bowles, 321

U.S. 321, 329-30 (1944) (explaining that for “several

hundred years of history” courts in equity have enjoyed

“sound discretion” to consider issuing injunctive relief).

This principle remains true in environmental cases like

this one. For example, in Weinberger v. Romero-Barcelo,

a Clean Water Act case, the Court explained that the

“essence of equity jurisdiction has been the power of

the Chancellor to do equity and to mould each decree to

the necessities of the particular case. Flexibility rather

than rigidity has distinguished it.” 456 U.S. 305, 312

(1982) (citation omitted). Thus, contrary to Petitioners’

argument, injunctive relief “has never been regarded

as strictly a matter of right, even though irreparable

injury may otherwise result to the plaintiff.” Id. (citation

omitted).

Third, the only exception to this rule exists if “[s]uch

discretion is displaced only by a ‘clear and valid legislative

command.’” Oakland Cannabis, 532 U.S. at 496 (quoting

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)).

But this Court “do[es] not lightly assume that Congress

has intended to depart from established principles” that

afford the district court with discretion. Weinberger, 456

U.S. at 312. Petitioners have not identified any language

in RCRA that limits the district court’s discretion. There

is none. See 42 U.S.C. § 6972(a)(2).

Rather than limit the district court’s discretion, RCRA

affords the district court with the discretion to decide

whether a mandatory injunction is “necessary.” 42 U.S.C.

§ 6972(a)(2). This language expressly leaves the district

13

court to decide whether a RCRA plaintiff has established

that a mandatory injunction is necessary to achieve the

goals of RCRA. And notably, a plaintiff’s burden for

obtaining a mandatory injunction is particularly high

because it imposes a significant burden on the defendant.

See, e.g., Communist Party of Ind. v. Whitcomb, 409 U.S.

1235 (1972) (a mandatory injunction is an “extraordinary

remedy [to] be employed only in the most unusual case”);

see also Trinity Indus. v. Chi. Bridge & Iron Co., 735

F.3d 131, 139 (3d Cir. 2013) (a movant seeking mandatory

injunctive relief under RCRA must carry a “particularly

heavy” burden such that its “‘right to relief must be

indisputably clear’”) (quoting Communist Party, 409 U.S.

at 1235).

The only mandatory language in RCRA is the phrase

“shall have jurisdiction,” but a “grant of jurisdiction to

ensure compliance with a statute hardly suggests an

absolute duty to do so under any and all circumstances.”

Weinberger, 456 U.S. at 312; cf. 42 U.S.C. § 9604(e)(5)(B)

(providing that a court “shall enjoin” a defendant under

certain narrow circumstances pursuant to CERCLA);

Dickerson v. Administrator, EPA, 834 F.2d 974, 977 (11th

Cir. 1987) (explaining that pursuant to 42 U.S.C. § 9604(e)

(5)(B) “Courts must enjoin any interference with the EPA’s

entry to property . . . .”).

Fourth, Petitioners’ plea that the Court cast aside

these principles because the “only form of relief available

to RCRA plaintiffs is an injunction” is based on an

error. Pet. 23. To the contrary, a district court may also

“apply any appropriate civil penalties” or order the EPA

Administrator to perform certain acts or duties to remedy

a RCRA violation. 42 U.S.C. § 6972(a)(2). Further, as the

14

Seventh Circuit recognized in this case, the Consent Order

and IEPA were already providing Petitioners with relief,

which left the district court to consider whether “to order

relief in addition to what IEPA has already required.”

App. 26.

Fifth, the crux of Petitioners’ argument, namely that

the district court was required to order GE to conduct

further cleanup of the site, conflicts with this Court’s

interpretation of RCRA. The purpose of RCRA is not

to require cleanup; that is the purpose of CERCLA.

See Mehrig, 516 U.S. at 483 (RCRA “is not principally

designed to effectuate the cleanup of toxic waste sites or

to compensate those who have attended to the remediation

of environmental hazards.”). Instead, the “primary

purpose” of RCRA “is to reduce generation of hazardous

waste and to ensure the proper treatment, storage, and

disposal of waste which is nonetheless generated, ‘so

as to minimize the present and future threat to human

health and the environment.’” Id. (quoting 42 U.S.C.

§ 6902(b)). Petitioners’ contention that they effectively

had no burden to establish that injunctive relief was

“necessary” to “minimize” any threat to human health

and the environment is thus wrong. 42 U.S.C. § 6972(a)(2).

In short, absent clear statutory language to the

contrary, even if there were a violation of law, “a

federal judge . . . is not mechanically obligated to grant

an injunction.” Weinberger, 456 U.S. at 312 (citations

omitted). Because Petitioners have identified no clear

(or even arguable) language in RCRA removing the

court’s discretion, the Seventh Circuit’s holding that “an

injunction does not follow automatically from a finding of

a risk of imminent and substantial endangerment,” App.

25, is wholly consistent with this Court’s jurisprudence.

15

II. The Decision Below is Consistent With Decisions

of Other Circuits

1. In holding that RCRA does not obligate a district

court to grant an injunction to remedy a RCRA violation,

the Seventh Circuit joined the uniform decisions of the

First, Third, and Fifth Circuits. There is no circuit split

that merits this Court’s review.

In Maine People’s Alliance v. Mallinckrodt, Inc., for

example, the First District held that “[a] district court is

not commanded . . . to issue an injunction after a finding

of [RCRA] liability . . . .” 471 F.3d 277, 297 (1st Cir. 2006).

Similarly, in Trinity Indus., the Third Circuit

affirmed the denial of mandatory injunctive relief because

the plaintiff had not met its burden in showing that the

injunction was “necessary” under § 6972(a)(2) where (like

here) a state consent order was already implementing a

remediation scheme. 735 F.3d at 140.

And in United States v. Marine Shale Processors,

the Fifth Circuit held that there is “nothing in RCRA

which, ‘in so many words, or by necessary and inescapable

inference, restricts the court’s jurisdiction in equity.’” 81

F.3d 1329, 1359-60 (5th Cir. 1996) (quoting Weinberger,

456 U.S. at 313); see also Ctr. for Biological Diversity,

Inc. v. BP America Prod. Co., 704 F.3d 413, 431 (5th Cir.

2013) (affirming denial of RCRA injunctive relief when

remediation efforts were already ongoing, and the plaintiff

had not proven they were “deficient”).1

1. District courts have reached the same conclusion. See

Grace Christian Fellowship v. KJG Invs. Inc., Case No. 07-C-0348,

2009 U.S. Dist. LEXIS 76954, at *15 (E.D. Wisc. Aug. 7, 2009)

16

Finally, the Seventh Circuit held that RCRA suits are

not “immune from all other constitutional and preclusive

doctrines, such as standing, mootness, and claim or issue

preclusion” where there is an ongoing state remedial

action. Adkins v. VIM Recycling, Inc., 644 F.3d 483,

503 (7th Cir. 2011). In other words, the Seventh Circuit

previously established that in circumstances such as

this one, a RCRA plaintiff must establish why its case

is not moot when some level of relief has been afforded

elsewhere.

2. In the face of these uniform decisions, Petitioners

have not identified a single case to the contrary that

would warrant this Court’s review. Instead, they cite to a

number of non-RCRA cases. But several of these cases do

not purport to interpret or apply RCRA (or even similar

statutory language), which means they are not “in conflict

with the decision of another United States court of appeals

on the same important matter.” Sup. Ct. Rule 10(a).

Further, most of the cases cited by Petitioners are

from the Seventh Circuit—including Commodity Futures

Trading v. Hunt, 591 F.2d 1211 (7th Cir. 1979), Illinois

v. City of Milwaukee, 599 F.2d 151 (7th Cir. 1979), EPA

v. Environmental Waste Control, 917 F.2d 327 (7th Cir.

1990), United States v. Bethlehem Steel Corp., 38 F.3d

(“RCRA does not evidence an intent to deny courts their traditional

equitable discretion . . . .”); Hodgins v. Carlisle Engineered Prods.,

No. 1:02-CV-01454, 2006 U.S. Dist. LEXIS 11321, at *8-*9 (N.D.

Ohio Mar. 2, 2006) (Under RCRA, “the court must perform the

normal balancing of equities in any decision regarding injunctive

relief.”); Gache v. Town/Village of Harrison, 813 F. Supp. 1037,

1044 (S.D.N.Y. 1993) (“A violation of RCRA does not mean that a

permanent injunction necessarily follows.”).

17

862 (7th Cir. 1994). Obviously, these cases do not create

an inter-Circuit conflict meriting this Court’s review. In

addition, the Seventh Circuit already rejected any notion

that the decision below created an intra-Circuit conflict,

when it denied Petitioner’s en banc petition. App. 157.

3. The lone RCRA case cited by Petitioners does not

create a conflict. In Environmental Defense Fund, Inc. v.

Lamphier, the Fourth Circuit did not adopt the argument

that a mandatory injunction is required upon a finding of

RCRA liability. 714 F.2d 331 (4th Cir. 1983). It did not even

address that question; it merely held that a court could

focus on the general public interest instead of balancing

traditional equitable factors. See id. at 337-38 (“Second,

in cases of public health legislation, the emphasis shifts

from irreparable injury to concern for the general public

interest.”). This is consistent with the Seventh Circuit’s

decision below. App. 17 (explaining that a RCRA plaintiff

need only show “a risk of harm” rather than the traditional

requirement of actual “irreparable harm”). Moreover, and

in direct conflict with the argument Petitioners make to

this Court, the RCRA injunction in Lamphier did not

require the defendant to cleanup a contamination, but

“merely require[d] Lamphier to open up his property to

state inspection at reasonable times.” Id. at 338. Thus,

Lamphier is wholly consistent with the decision below.

For these reasons, the Seventh Circuit’s decision did

not create a circuit split, much less one that merits this

Court’s review. There is no reason to grant certiorari

given the uniform voice of the appellate courts on this

matter.

18

III. The Fact-Bound Decision Below is Correct and

Presents a Poor Vehicle for this Court’s Review

Finally, the Court should deny certiorari because the

fact-bound decision below was correct and only subject to

reversal in the event of an abuse of discretion or a clearly

erroneous finding of fact. See eBay Inc. v. Merc Exchange,

L.L.C., 547 U.S. 388, 391 (2006) (“The decision to grant

or deny permanent injunctive relief is an act of equitable

discretion by the district court, reviewable for abuse of

discretion.”) (citation omitted); Easley v. Cromartie, 532

U.S. 234, 242 (2001) (“We are also aware that we review

the District Court’s findings only for ‘clear error.’”).

Beyond their contention that the district court lacked

discretion to deny a mandatory injunction, Petitioners’

chief complaint is that the decisions below improperly

deferred to the Consent Order because Illinois “is doing

nothing.” Pet. 6. This critique misconstrues the decisions

below.

First, Petitioners’ contentions that the Consent Order

does nothing and does not require an abatement are

false. The Consent Order specifically requires “that GE

investigate the nature and extent of the contamination

and then perform remediation.” App. 5. Moreover, Illinois

assured the district court that these actions were “being

done with diligence and rigorous oversight.” App. 10.

Petitioners’ disagreement with this finding does not

warrant this Court’s review because it “do[es] not grant .

. . certiorari to review evidence and discuss specific facts.”

United States v. Johnston, 268 U.S. 220, 227 (1925).

Second, Petitioners’ repeated complaints that the

district court should have issued “an order mandating a

19

cleanup” or “require[d] the abatement of an endangerment”

are misplaced. Pet. i, 6. While Petitioners claim (without

citation) that their “evidence identified specific actions

that could be ordered to address the harm,” Pet. 6-7, the

opposite is true. As the district court found, Petitioners

never presented evidence in favor of further cleanup, but

instead contended “that any remedial measures would

be premature at this stage because the extent of the

contamination has not been properly determined.” App.

59. The Seventh Circuit agreed that Petitioners failed to

present evidence, noting that “when asked by the district

court judge what specific cleanup he recommended,

[Petitioners’] expert declined to make a recommendation.”

App. 10. Not only that, but the district court found that

even the additional investigation proposed by Petitioners’

expert—drilling through the bedrock to test the aquifer

below—would do more harm than good by creating an

avenue for the otherwise contained contamination to

spread. App. 27, 44. At best, Petitioners’ argument that

the evidence supported a cleanup is a factual dispute that

does not warrant this Court’s review. In reality, given

the testimony of Petitioners’ expert that he could not

make a recommendation, this argument is disingenuous.

Petitioners invited any error through their failure to

present evidence in favor of a cleanup, which makes this

case a poor vehicle for review.

Third, Petitioners’ contention that the decision below

failed to give adequate weight to the potential harm by

unduly deferring to the Consent Order is wrong. On the

contrary, the decision below actually recognized that in

many cases injunctive relief is warranted when RCRA

liability is found: “True, once a court finds a defendant

liable for creating a risk of imminent and substantial

20

danger, it will usually be the case that injunctive relief

is warranted.” App. 16 (citation omitted). Moreover, the

district court did not defer to the Consent Order. Rather,

it stated it would not defer to the Consent Order. App.

81. It then admonished Petitioners that “it was looking

for evidence of harm requiring relief in addition to the

[Consent Order].” App. 25. In fact, as the Seventh Circuit

recognized, the district court “provided [Petitioners] with

numerous opportunities to present evidence that the state

proceedings were not adequately protecting the public and

the environment.” App. 25. Petitioners, however, simply

failed to present evidence, in part, because they “did not

conduct any of their own investigation,” and because their

expert “did not make a recommendation, leaving the court

without guidance.” App. 25-26.

Under these facts, the district court did not abuse its

discretion in concluding that Petitioners did not meet their

burden to establish that injunctive relief was “necessary.”

There is no reason for the Court to revisit these factual

findings.

21

CONCLUSION

In reality, Petitioners’ problem is not with the Seventh

Circuit’s holding, but with Congress’s decision to preserve

the district court’s long-held discretion to decide whether

to issue an injunction. Whatever the merits of Petitioners’

concerns about the Consent Order, it was their burden to

present the district court with evidence establishing the

necessity of further injunctive relief. They did not do so,

and they have identified no error of law, much less a conflict

with any other authority from this Court or another court

of appeals. The Court should deny the petition for a writ

of certiorari.

Respectfully submitted,

A nthony L. Osterlund

Counsel of Record

Mark A. Norman

Nathan L. Colvin

Vorys, Sater, Seymour and Pease LLP

301 East Fourth Street

Great American Tower, Suite 3500

Cincinnati, Ohio 45202

(513) 723-4000

alosterlund@vorys.com

Counsel for Respondent