In July 2004, the Illinois legislature amended the state Environmental Protection Act to authorize the Attorney General to seek “an injunction, prohibitory or mandatory, to restrain violations . . . or to require such other actions as may be necessary to address violations of this Act.” The following year, the Supreme Court held in People ex rel. Ryan v. Agpro, Inc. that the pre-amendment version of the statute permitted only prohibitory injunctions restraining future violations.
So did the 2004 amendment apply retroactively to authorize courts to order cleanups of violations from before its effective date? The Illinois Supreme Court unanimously answered that question earlier this month with its opinion in People ex rel. Madigan v. J.T. Einoder, Inc.: No. Our detailed summary of the facts and lower court holdings in Einoder is here. Our report on the oral argument is here.
The property at issue in Einoder was purchased by the husband defendant in 1993 and placed in a land trust. The property was developed into a construction and demolition resource recovery facility and landfill using leased equipment and operators provided by a closely held corporation, 90% owned by the wife defendant. The site began accepting general construction and demolition debris and clean construction and demolition debris in 1995. In the years that followed, the site was inspected various times, and on multiple occasions, violation citations were issued by the state Environmental Protection Agency.
The Attorney General filed a seven-count complaint in 2000. Five years later, the State filed an amended complaint, adding the individual defendants as parties. A bench trial followed, and the court entered judgment for the State, imposing fines against the corporate and individual defendants. In addition to the fines, the State requested a mandatory injunction requiring the removal of the defendant’s above-grade waste pile, which was at that point a 90-foot grass-covered hill composed of 99.99% clean construction and demolition debris. The trial court granted the injunction. A majority of the Appellate Court affirmed, with one dissenter arguing that the 2004 amendments would not be applied retroactively to authorize a mandatory injunction.
In an opinion by Justice Burke, a unanimous Illinois Supreme Court reversed the Appellate Court with respect to the injunction issue. The Court noted that Illinois follows the approach set forth by the United States Supreme Court in Landgraf v. USI Film Products in determining whether an amended statute can be applied retroactively. The first step of Landgraf is simple: if the legislature has indicated that the amendment is intended to apply retroactively, absent a due process bar, that intent is given effect. If the legislature hasn’t expressed a view, then in the second step of the analysis, the court determines whether applying the amendment in the case at bar would amount to a retroactive application. An application is retroactive if it would impair rights a party possessed when she acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.
In Illinois, the Court observed, Landgraf analysis is made considerably simpler by Section 4 of the Statute on Statutes (5 ILCS 70/4). Section 4 provides a simple black-letter rule: procedural changes apply retroactively, substantive changes don’t.
Nothing in the 2004 amendments themselves gave any indication as to whether the legislature intended a retroactive application or not. So the Court passed to the second step of the analysis: was authorizing mandatory injunctions substantive or procedural? That was an easy one, the Court found – the threat of a mandatory injunction imposed a substantial new liability on the defendants’ past conduct. Therefore, it was a substantive change in the law and could not be applied retroactively pursuant to Section 4 of the Statute on Statutes.
The Court concluded by briefly affirming the Appellate Court as to the wife defendant’s personal liability, noting that the defendant had personally signed numerous contracts authorizing dumping even after she was aware that the landfill had been cited for violating the Act, and after participating in discussions about violation notices.