Alliance of the Southeast v. U.S. Army Corps of Engineers

The federal district court for the Northern District of Illinois dismissed a challenge to the U.S. Army Corps of Engineers’ approval of the Calumet Harbor Dredged Material Facility after the agency withdrew its final decision on March 10, 2025. The project would have vertically expanded a dredged material disposal facility along Lake Michigan in Chicago. The plaintiffs’ allegations had included that the Corps did not fully evaluate and consider the impacts of climate change on the project. The court held that without a “final agency action,” as required under 5 U.S.C. § 704, the plaintiffs could not proceed with their claims. Citing Driftless Area Land Conservancy v. Rural Utilities Service, 74 F.4th 489 (7th Cir. 2023), the court emphasized that judicial review under the APA requires a conclusive agency determination. Since the Corps’ withdrawal rendered the decision non-final, the court concluded that no justiciable APA claim remained. Although the court agreed with the plaintiffs’ argument that a withdrawal of an agency decision did not render the APA claim moot, the court emphasized the APA’s statutory requirement of a “final agency action,” which no longer existed. Although plaintiffs agreed to a dismissal without prejudice, they sought to condition it on the Corps’ commitment to cap and permanently close the existing dredged materials site. The court denied that request, finding that such conditions functioned as a request for permanent injunctive relief—which could not be granted in the absence of a viable claim. Consequently, the court dismissed the case with prejudice, finding no remaining final agency action to adjudicate and noting that any future decision by the Corps would create a new case or controversy.

The U.S. Department of Justice filed a memorandum in support of the defendants' motion to dismiss the lawsuit. In April 2025, the Corps formally withdrew that Record of Decision, citing the need to re-evaluate options in consultation with the Illinois Environmental Protection Agency. In light of this withdrawal, the government argued that all claims should be dismissed because the Administrative Procedure Act (APA) only authorizes judicial review of “final agency action,” and no such action remained in force. The Corps emphasized that any new project proposal would require a new National Environmental Policy Act process and public engagement, making the existing litigation premature and speculative. The government also contended that the case was moot, as there was no longer an agency decision for the court to review or set aside. The government contended that plaintiffs’ attempt to seek new injunctive relief not originally pled—such as an order requiring the Corps to close and restore the existing facility—was also improper under APA rules, which only allow courts to compel or vacate agency actions. The motion emphasized that any future decision by the Corps would be a new agency action subject to separate legal challenges. Relying on Seventh Circuit precedent, mainly Driftless Area Land Conservancy v. Rural Utilities Service, the defendants argued that once the Record of Decision was rescinded, the litigation should be terminated. They further noted that no exception to mootness applied, as the withdrawn project is not “capable of repetition, yet evading review,” and the Corps could not reinstate the decision without starting the administrative process anew.

Two groups representing southeast Chicago communities filed a lawsuit in the federal district court for the Northern District of Illinois challenging U.S. Army Corps of Engineers approval of the Calumet Harbor Dredged Material Disposal Facility (DMDF), which would enable continued disposal of dredged materials from the Chicago Area Waterway System atop the existing 45-acree Confined Disposal Facility (CDF). The plaintiffs alleged that the CDF is located on submerged Lake Michigan lakebed, which the State of Illinois holds in public trust. The complaint alleged that the Corps had used the CDF for disposal of dredged material for almost 40 years, despite a statutory requirement that it be converted into a public park after no more than 10 years of use as a disposal facility. The plaintiffs assert that approval of the Calumet Harbor DMDF violated NEPA, the Clean Water Act, and statutory requirements for establishing dredged material disposal facilities, as well as the Illinois Public Act and the Illinois public trust doctrine. The NEPA claims involve allegations that the Corps assumed “no additional cost resulting from higher water levels and more intensive storms driven by climate change and other factors along the Lake Michigan lakeshore” and that the EIS “did not fully and fairly evaluate and take the required hard look at the impacts of climate change” with regard to the project.