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Two environmental groups can press forward with a lawsuit to halt the Milwaukee Metropolitan Sewerage District’s allegedly illegal raw sewage discharges into Lake Michigan after the case was revived Thursday by the U.S. Court of Appeals for the Seventh Circuit. On a pro bono basis, Partners James A. Vroman and Steven M. Siros and Associates Jason E. Yearout and David J. Scriven-Young briefed the case, while Partner Barry Levenstam argued it before the three-judge panel. Along with the Jenner & Block team, Karen M. Schapiro of DeWitt, Ross, & Stevens, S.C. also represent the two environmental organizations.
The ruling reverses a Milwaukee federal trial judge’s dismissal of the case last year on jurisdictional grounds and without ruling on its merits.
The court’s ruling means that the plaintiffs, the Lake Michigan Federation and Friends of Milwaukee’s Rivers, can proceed to argue that the Milwaukee Metropolitan Sewage District (MMSD)’s ongoing discharges do not comply with the federal Clean Water Act and that the city’s raw industrial and domestic waste entering Lake Michigan and feeder rivers, since 1995, put recreation, drinking water and the region’s quality of life at risk. The groups call for a phase-out of such discharges and penalties that can be directed to community projects that discourage further waste dumping by MMSD. They are also seeking on-going supervision or monitoring of the MMSD to assess its compliance progress and further penalties to be imposed if the sewage district does not meet interim progress benchmarks.
The two organizations filed suit in U.S. District Court on March 15, 2002, charging that MMSD had violated the Clean Water Act by discharging about 1 billion gallons of raw industrial and domestic waste to area waterways over the years.
In May 2002, the MMSD sought dismissal of the groups’ lawsuit, arguing the federal lawsuit was unnecessary because the Wisconsin Department of Natural Resources had filed its own suit against the MMSD in state court. A lower court dismissed the groups’ federal case in September 2003, but the organizations appealed saying the state had provided little or no enforcement against the MMSD’s ongoing permit violations. The two organizations have long contended that the state action, brought after their federal suit was filed, was merely a “friendly” suit intended to shield the MMSD from being forced to eliminate sewage overflows. The state lawsuit requires neither a phase-out of sewage discharges nor penalties.
The organizations focused their citizens’ suit on MMSD’s sanitary sewage overflows in the years following the completion of Milwaukee’s deep tunnel. The nearly $3 billion deep tunnel project was designed to virtually eliminate sanitary sewer overflows, yet during the period in question approximately 1 billion gallons of raw domestic and industrial sewage was dumped into area waters. Though not included in the environmental groups’ lawsuit, a Friends of Milwaukee’s Rivers report suggests approximately 600,000 gallons of untreated sewage was dumped in 2002, and nearly a half billion gallons have been dumped to date in 2004.