By E. King Poor
Partner, Quarles & Brady LLP, Chicago
Cases can become moot at anytime—even on appeal. And the Seventh Circuit’s recent decision in DJL Farms LLC v. USEPA, 813 F.3d 1048 (7th Cir. 2016) is a reminder of that.
In DJL Farms, a developer sought permits from the United States Environmental Protection Agency to construct a near-zero emission coal-burning facility to produce electricity. The facility required injecting massive amounts of carbon dioxide into deep subsurface wells over a 20-year period. Id. at 1049.
Nearby landowners challenged the project before the EPA which overruled their objections and issued the necessary permits. The landowners then sought administrative review before the Seventh Circuit. Id. at 1050.
Shortly before oral argument, the developer lost the funding for the project and requested that the EPA cancel the projects’ permits, and moved, along with the EPA, to dismiss the appeal as moot. The landowners argued that the case was not moot because it was akin to merely a “voluntary cessation” of activity and it was unclear if the cancelled permits still might be transferred, sold, or reissued. Id.
The Seventh Circuit held that the appeal was moot. It began its analysis with the fundamental principle that federal courts lack subject matter jurisdiction when a case becomes moot, and must therefore dismiss an action when it is “impossible for the court to grant any effectual relief whatever to a prevailing party.” Id. And though the Supreme Court has long imposed a “strident standard” when determining if a case has been mooted by voluntary conduct, in this case, the Seventh Circuit held that the developer and the EPA met that burden because (a) the order was not “separately reviewable,” but was a “prerequisite to seeking judicial review,” and (b) under the EPA’s own regulations, the permits could not be transferred or reissued. Id. at 1051. Accordingly, it dismissed the appeal as moot.
The DJL Farms decision provides another illustration that appellate lawyers should be mindful of events that might render a case moot after the filing of a notice of appeal. Mootness may arise at any point—even on appeal.
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