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Solid Waste Agency of N. Cook County v. Corps of Eng'rs

ELR Citation: 27 ELR 20566
Nos. 95-3324, 101 F.3d 503/(7th Cir., 11/26/1996)

The court holds that a municipality and its citizens may not intervene as of right on the side of the U.S. Army Corps of Engineers (the Corps) in a challenge to a Federal Water Pollution Control Act (FWPCA) §404 permit denial. Several municipalities that wanted to build a landfill on a wooded and watery site sought the permit. The court first holds that the prospective intervenors' alleged interest in keeping the landfill from being built is sufficient to support their claim for intervention. The prospective intervenors argued that the landfill would lower their property values; produce noise, dust, and odors; and deprive residents of the environmental amenities that the site affords in its present undeveloped state. But the court concludes that the prospective intervenors failed to prove that existing parties will not represent them adequately. The prospective intervenors alleged that the U.S. Department of Justice (DOJ) having broader interests than merely enforcing the FWPCA in one small tract of land, might settle the suit on terms that do not fully protect the prospective intervenors' interests or decide not to appeal an adverse judgment. Where—as in this case—the interests of the original party and of the intervenor are identical, adequacy of representation is presumed. The court holds, however, that the interest of the Corps and of the prospective intervenors is the same: to defeat the effort to invalidate the permit denial. The court rejects the assertion that DOJ's additional interests are sufficient to establish inadequate representation. More is needed than a presumption of inadequacy based on the diversity of DOJ's interests. The court vacated and remanded the district court's denial of permissive intervention, because the lower court held that the prospective intervenors' interest was inadequate and it failed to exercise its discretion.

Counsel for Plaintiff
Russell R. Eggert
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60602
(312) 782-0600

Counsel for Defendants
Peter Flynn
Cherry & Flynn
30 N. La Salle St., Ste. 2300, Chicago IL 60602
(312) 372-2100

Before POSNER, Chief Judge, and COFFEY and KANNE, Circuit Judges.