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Illinois ex rel. Scott v. Butterfield

Citation: 5 ELR 20587
No. No. 74 C 2410, 396 F. Supp. 632/8 ERC 1307/(N.D. Ill., 06/16/1975)

The court denies a motion to dismiss a suit seeking declaratory and injunctive relief against increases in the number of aircraft operations at O'Hare International Airport. Plaintiffs allege that defendants' failure to prepare a NEPA impact statement for the increases and to comply with the notice and publication requirements of the Administrative Procedure Act in the promulgation of flight rules and policies is unlawful. Defendants' technical defenses asserting that the action is barred by sovereign immunity, failure to exhaust remedies, failure to state a claim on which relief can be granted, and failure to join the City of Chicago as a party needed for just adjudication, are all rejected as without merit. The court has subject matter jurisdiction under 28 U.S.C. § 1331, the federal question statute, to determine whether an EIS is required under NEPA in this case. While the decision to maintain O'Hare as a major airport, made prior to the passage of NEPA, does not trigger the impact statement requirement in itself, the requirement does compel production of a statement considering the environmental effects of incremental decisions creating increased operational activity at the airport. The court grants leave for four local governments and an environmental group to intervene as plaintiffs, but declines to reach the question of whether these parties could intervene as a matter of right. A nuisance count is dismissed as improperly directed at defendant federal agencies.

Counsel for Plaintiff
William J. Scott Attorney General
State Capitol
Springfield, Ill. 62706

Counsel for Plaintiff-Intervenor Village of Schiller Park
James Michael Keane
1 North LaSalle
Chicago, Ill. 60602

Counsel for Defendants
Arnold Kanter U.S. Attorney
United States Court House
Chicago, Ill. 60604