15-2248 Djl Farm LLC v. United States Environmental Protection Agency

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15‐2245, 15‐2246, 15‐2247 & 15‐2248
DJL FARM LLC, et al.,
Petitioners,
v.
U NITED STATES ENVIRONMENTAL P ROTECTION A GENCY, et al.,
Respondents.
____________________
Petitions for Review of an Order of the
Environmental Protection Agency
____________________
SUBMITTED FEBRUARY 5, 2016 — D ECIDED FEBRUARY 23, 2016
____________________
Before BAUER , FLAUM, and SYKES , Circuit Judges.
P ER C URIAM. Petitioners DJL Farm LLC, Andrew H. Lein‐
berger Family Trust, and William and Sharon Critchelow are
landowners who challenge permits authorizing FutureGen
Industrial Alliance to construct and operate wells to store
carbon dioxide near their land.
Shortly before argument, FutureGen determined that it
did not have enough money to develop the wells authorized
by the permits and, with the EPA, moved to dismiss the con‐

-- 1 of 5 --

2 Nos. 15-2245, 15-2246, 15-2247 & 15-2248
solidated petitions as moot. After hearing from both sides,
we conclude that because the four permits expired on Feb‐
ruary 2, 2016, they are no longer in force and petitioners lack
any concrete interest in challenging them. We therefore dis‐
miss as moot the petitions for review.
I. Background
FutureGen Industrial Alliance was created to research
and develop near‐zero emissions coal technology and sought
to use carbon capture and storage to develop the world’s
first near‐zero emissions power plant in Morgan County, Il‐
linois.
Geologic sequestration is part of the process known as
carbon capture and storage, and involves the injection of
carbon dioxide into deep subsurface rock formations for
storage. This long‐term underground storage is intended to
reduce carbon dioxide emissions to the atmosphere and mit‐
igate climate change.
The Safe Drinking Water Act requires the EPA to regulate
underground injection of hazardous material under permits
that will ensure protection of underground sources of drink‐
ing water. The EPA has determined that pressurized carbon
dioxide is a hazardous material. Under EPA regulations fi‐
nalized in 2010, all injection activities are prohibited until the
owner or operator is authorized by permit. See 40 C.F.R. §
144.31.
In March 2013 FutureGen applied for permits to con‐
struct four Class VI underground injection control wells and
inject approximately 22 million metric tons of carbon dioxide
into the wells over a 20‐year period. After requesting addi‐
tional information, the EPA issued draft permits in March

-- 2 of 5 --

Nos. 15-2245, 15-2246, 15-2247 & 15-2248 3
2014. Petitioners submitted written comments challenging
the permits during the public comment period.
In August 2014 the EPA issued four permits to FutureGen
authorizing it to construct and operate underground injec‐
tion control wells. They were the first to be issued under the
new regulations governing injection control wells.
Petitioners filed timely petitions for review with the En‐
vironmental Appeals Board, which the Board denied. The
EPA issued the final permits on May 7, 2015. Petitioners then
sought review in this court.
In January 2015, the United States Department of Energy
suspended funding for the FutureGen project authorized by
the challenged permits. The permits were set to expire on
May 7, 2016, unless construction of the wells had begun or
an extension was allowed. After exhausting avenues to rein‐
state that funding, FutureGen determined that it will not
proceed with development of the project. On February 2,
2016, FutureGen submitted a request to the EPA to advance
the expiration of the permits.
Before receiving confirmation that the permits were ex‐
pired, the EPA and FutureGen moved to vacate oral argu‐
ment and dismiss the consolidated petitions for review as
moot because the permits would no longer be in effect. Peti‐
tioners opposed the motion because it was not yet clear that
the permits were expired or whether the permits could be
transferred to another developer. The EPA and FutureGen
submitted a letter from the EPA confirming that the permits
are expired as of February 2, 2016, and filed a reply further
supporting their motion to dismiss. We issued a short order

-- 3 of 5 --

4 Nos. 15-2245, 15-2246, 15-2247 & 15-2248
vacating oral argument and taking the motions papers under
advisement.
II. Discussion
Federal courts lack subject matter jurisdiction when a
case becomes moot. Pakovich v. Verizon LTD Plan, 653 F.3d
488, 492 (7th Cir. 2011). Accordingly, a case must be dis‐
missed “if an event occurs while a case is pending … that
makes it impossible for the court to grant any effectual relief
whatever to a prevailing party.” Id. (quoting Cornucopia Inst.
v. U.S. Depʹt of Agric., 560 F.3d 673, 676 (7th Cir. 2009)). The
EPA and FutureGen submit that because the challenged
permits are expired, there is no meaningful relief we could
award to petitioners.
Petitioners respond that they also challenge the Envi‐
ronmental Review Board’s order rejecting their challenges
and ask us to vacate both the permits and the Board’s order.
Petitioners also argue that their petitions are not moot be‐
cause it is not clear that the permits cannot be transferred,
sold, reissued, or used as a basis, along with the Board’s
opinion, for issuing new permits for the same project in the
same location.
Petitioners liken this situation to voluntary cessation of a
challenged practice, which “does not deprive a federal court
of its power to determine the legality of the practice.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283, 289 (1982)). The Supreme Court imposes a
stringent standard for determining whether a case has been
mooted by a party’s voluntary conduct: “A case might be‐
come moot if subsequent events made it absolutely clear that

-- 4 of 5 --

Nos. 15-2245, 15-2246, 15-2247 & 15-2248 5
the allegedly wrongful behavior could not reasonably be ex‐
pected to recur.” Id. (citing United States v. Concentrated Phos‐
phate Exp. Ass’n, 393 U.S. 199, 203 (1968)).
We conclude that FutureGen and the EPA have met this
burden. They first explain that the Environmental Review
Board’s order in this case is not a separately reviewable ac‐
tion, and instead is a prerequisite to seeking judicial review
of the permits. See 40 C.F.R. § 124.19(l)(2). They also explain
that an expired permit cannot be transferred, reissued, or
used as a basis for issuing new permits in the same location.
Only active permits can be transferred under EPA regula‐
tions, see id. § 144.38(a), and a permit can be reissued only
after an active permit is revoked, see id. § 144.39(b), which is
inapplicable to an already‐expired permit.
It is possible that the expired permits could be used as a
reference for a new entity seeking a permit in the same loca‐
tion. But the new entity will have to go through the same
regulatory process and may remedy the problems that peti‐
tioners identified in the current process. Even if FutureGen
decided in the future to pursue new permits in the same lo‐
cation, it would have to repeat the regulatory process.
Petitioners challenge permits that are now expired. No
entity can construct or operate injection control wells near
their land without submitting a new application for a permit
and completing the regulatory process. Because the chal‐
lenged permits are no longer in effect and cannot be reissued
absent new regulatory proceedings, there is no relief that we
can grant to petitioners. Accordingly, the petitions are
DISMISSED as moot.

-- 5 of 5 --