### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3107

EOR E NERGY LLC, et al.

, Plaintiffs

‐ Appellants

,

v.

I LLINOIS E NVIRONMENTAL P ROTECTION A GENCY

, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 3:16

‐ cv

‐ 03122

— Sue E. Myerscough

, Judge

.

____________________

A RGUED S EPTEMBER 21, 2018

— D ECIDED J ANUARY 16, 2019

____________________

Before W OOD

, Chief Judge

, and F LAUM and H AMILTON

, Cir

‐

cuit Judges

.

W OOD

, Chief Judge

. In March 2007 the Illinois Environmen

‐

tal Protection Agency (IEPA) brought charges before the Illi

‐

nois Pollution Control Board (the Board) against EOR Energy,

LLC (EOR) and AET Environmental, Inc. (AET). The IEPA ac

‐

cused EOR and AET of violating the Illinois Environmental

Protection Act, 415 ILCS 5/1–5/58, by transporting hazardous

‐

waste acid into Illinois, storing that waste, and then injecting2 No. 17

‐ 3107

it into EOR’s industrial wells in Illinois. EOR challenged its

prosecution by arguing that under the environmental law

scheme put in place by Illinois, the IEPA and the Board do not

have jurisdiction over EOR’s acid dumping. EOR took that ar

‐

gument all the way through the Illinois courts, losing at every

turn. The state courts determined that under Illinois law,

EOR’s jurisdictional argument is meritless.

Having lost in the state courts, EOR has turned to the fed

‐

eral courthouse. It would like the federal district court to issue

a declaratory judgment that under federal law, the IEPA and

the Board do not have jurisdiction over any future attempts

to dump similar acidic waste into its wells. The district court

dismissed the case on several grounds: the Eleventh Amend

‐

ment, issue preclusion, and a hint of Rooker

‐ Feldman

, to the

extent that EOR was trying to undo the adverse decisions

from the state courts. We agree with the district court that this

suit cannot proceed in federal court: it is blocked by claim and

issue preclusion; in some respects Rooker

‐ Feldman deprives

the district court of subject

‐ matter jurisdiction; and to the ex

‐

tent that anything else remains, EOR is stymied by the Elev

‐

enth Amendment.

In 2002 a tire production facility in Colorado experienced

an emergency overheating of industrial acid. AET Environ

‐

mental was hired by the plant to dispose of the acid. When it

could not find a nearby waste disposal plant that would ac

‐

cept the acid, AET decided to ship the acid to EOR, an oil com

‐

pany with wells in Illinois. EOR stored the acid in Illinois for

two years. At that point, it decided to inject some of the acid

into its wells. It ultimately disposed of the rest of the acid after

several inspections and investigations into the safety of the

acid as potentially dangerous hazardous waste. Five yearsNo. 17

‐ 3107 3

later, the IEPA brought charges before the Board against EOR

and AET (collectively EOR), identifying the transportation,

storage, and injection of the acid as violations of Illinois envi

‐

ronmental law. In June 2012, the IEPA filed an unopposed

motion for summary judgment. The Board granted that mo

‐

tion and imposed $60,000 in sanctions against AET and

$200,000 against EOR. EOR then filed a motion for reconsid

‐

eration, arguing for the first time that the Board did not have

jurisdiction under state law over its suit. EOR asserted that it

was not injecting “waste” into its wells. Instead, it said, it was

merely injecting an acid that was used to treat the wells and

aid in petroleum extraction. Therefore, according to EOR, the

Illinois Department of Natural Resources (the Department)

had exclusive jurisdiction over EOR’s injection of acid into a

“Class II well” under the Illinois Oil and Gas Act, 225 ILCS

725/1. The Board rejected this argument and denied EOR’s

motion for reconsideration.

EOR appealed directly to the Appellate Court of Illinois

(Fourth District), which affirmed the Board’s decision. E.O.R.

Energy, LLC v. Pollution Control Bd.

, 2015 IL App (4th) 130443,

¶ 100 (2015). The Appellate Court emphasized that this was a

matter of state law, specifically Illinois’s “comprehensive stat

‐

utory structure for the regulation of underground injection of

materials into wells in Illinois,” although the statutory scheme

was “promulgated with federal approval.” Id. at ¶ 83. The

court interpreted the Illinois Environmental Protection Act as

giving the Board jurisdiction to decide this type of case, and

the IEPA jurisdiction to enforce this matter, “[b]ecause the

acid material was both a ‘waste’ and a ‘hazardous waste’

within the meaning of the Act.” Id. at ¶¶ 72–80. It further held

that not only was the Department’s jurisdiction in this area4 No. 17

‐ 3107

not exclusive; it was non

‐ existent. The court held that the De

‐ partment’s authority is limited to the injection of certain fluids

associated with oil and gas production. Id. at ¶¶ 81–88. Both

the Supreme Court of Illinois, E.O.R. Energy, LLC v. Pollution

Control Bd.

, 396 Ill. Dec. 175 (2015), and the Supreme Court of

the United States, E.O.R. Energy, LLC v. Illinois Pollution Con

‐

trol Bd.

, 136 S. Ct. 1684 (2016), declined to hear EOR’s appeals.

Almost immediately after losing in state court, EOR and

AET filed this action, purportedly seeking a declaratory judg

‐

ment through the citizen

‐ suit provisions of the two federal

laws—the Resource Conservation and Recovery Act, 42

U.S.C. §§ 6901–6992k, and the Safe Drinking Water Act, 42

U.S.C. §§ 300f–300j

‐ 27—that allow states to develop their own

statutory schemes after obtaining federal approval. As it did

in the state

‐ court action, EOR argues that Class II injection

wells in Illinois are exclusively regulated by the Department,

and so the IEPA is not empowered to require EOR to obtain a

Class I permit or otherwise prosecute EOR for (as it describes

in its brief) trying “to use cheap or off

‐ spec acid similar to that

used in the 2002

‐ 2004 acidization” into its Class II wells. The

district court granted the IEPA’s motion to dismiss for failure

to state a claim upon which relief can be granted. We review

that dismissal de novo

. Kubiak v. City of Chicago

, 810 F.3d 476,

480 (7th Cir. 2016).

EOR’s complaint, which we must accept as true at this

stage, paints a clear picture of what it would like to do. EOR

wants to continue injecting the hazardous acid into its wells,

but this time it would like to do so armed with a declaratory

judgment from a federal court that will protect it from another

enforcement action brought by the IEPA and another penaltyNo. 17

‐ 3107 5

imposed by the Board. As EOR puts it, it would like to con

‐

duct these operations “without fear of a similar ordeal as they

are currently enduring.” It cites past litigation costs and the

enforcement of the state court’s order—through fines and the

direction to obtain permits or cease unlawful conduct—as the

kinds of harms it seeks to avoid with a federal court order.

We emphatically reject this undisguised attempt to exe

‐

cute an end

‐ run around the state court’s decision. That court

has considered and ruled on EOR’s arguments about the dis

‐

tribution of power among Illinois’s environmental agencies.

First, its decision is final. Second, there is no federal interest

in which state agency is authorized to take action. And above

all, EOR ignores the duty of the federal courts to respect state

‐

court judgments and the jurisdictional barrier that would ex

‐

ist if what it really wants is lower federal

‐ court review of the

state

‐ court results.

To the extent EOR wanted the district court and now this

court to review and set aside the state court’s adverse deci

‐

sion, it runs into the Rooker

‐ Feldman doctrine, under which

lower federal courts lack jurisdiction to review state

‐ court

judgments or to decide matters inextricably related to state

court decisions. See Rooker v. Fidelity Trust Co.

, 263 U.S. 413,

415–16 (1923); District of Columbia Court of Appeals v. Feldman

,

460 U.S. 462, 482–86 (1983); Exxon Mobil Corp. v. Saudi Basic

Indus. Corp.

, 544 U.S. 280, 284 (2005).

The heart of EOR’s claim is that the Illinois Appellate

Court declared the wrong rule of law and that we should cor

‐

rect it. EOR would like us to hold that the IEPA and the Board

indeed lack jurisdiction to hold EOR accountable for dump

‐ ing acidic waste into its wells. But if EOR believed that the6 No. 17

‐ 3107

Illinois court got it wrong, its remedy was to ask the state su

‐

preme court, and thereafter the Supreme Court of the United

States, to correct the error. It filed the necessary petitions, but

those courts chose not to hear its case. That was the end of the

line. There is no asterisk appended to the Rooker

‐ Feldman doc

‐

trine saying that it evaporates once certiorari is denied. The

state court has adjudicated EOR’s claim, and that is that: it

may not come to the federal courthouse for Round Two.

It may be more accurate, however, to read EOR’s com

‐ plaint and briefs in this court as acquiescing in the state

court’s judgment, including the penalties it imposed, and ask

‐ ing simply for a new ruling on the pure issues of law. In that

case, we do not face a Rooker

‐ Feldman problem, but EOR is no

better off. The reason is simple: litigants cannot simply ignore

legal rulings from a competent state court and receive a do

‐

over in federal court. The full faith and credit statute, 28

U.S.C. § 1738, dictates the opposite rule: federal courts must

give the same preclusive effect to a state

‐ court judgment that

it would receive under state law. See, e.g.

, Marrese v. American

Academy of Orthopaedic Surgeons

, 470 U.S. 373, 380 (1985).

Even if, as EOR insists, its federal

‐ law arguments are dif

‐

ferent from the questions relating to the allocation of powers

among the state agencies that were decided on the merits in

the prior litigation, that does not matter. Illinois applies claim

preclusion when the original state court rendered a final judg

‐

ment on the merits; the claims arise out of the same nucleus

of fact; and the parties are identical. See Hudson v. City of Chi

‐

cago

, 228 Ill. 2d 462, 467 (2008). This blocks parties not only

from re

‐ litigating the issues the state court actually enter

‐

tained; it also bars litigation of any theory that could have

been raised. And if that were not enough, EOR also faces issueNo. 17

‐ 3107 7

preclusion. EOR raised its jurisdictional argument in the prior

state proceedings, and that issue was necessary to the Illinois

court’s decision on the merits. Under those circumstances,

EOR may not re

‐ litigate that issue. See Du Page Forklift Serv.,

Inc. v. Material Handling Servs., Inc.

, 195 Ill. 2d 71, 77 (2001).

We add for good measure that the Eleventh Amendment

prohibits a federal court from ordering any relief against a

state agency based on state law. Pennhurst State Sch. & Hosp.

v. Halderman

, 465 U.S. 89, 100–01, 106 (1984). Although the en

‐

forcement of environmental laws is in part accomplished

through a partnership between the states and the federal gov

‐

ernment, federal law has nothing to say about which agency

a state is entitled to use in carrying out those tasks. That is

purely a matter of state law.

EOR also has asked this court for the opportunity to cure

and refile its complaint. We deny its request. There is no way

that EOR could remedy the errors outlined above. Any

change in the suit that would remove these flaws would also

destroy EOR’s standing and the entire point of its lawsuit. If

EOR intends to ignore the state court’s rulings and inject the

same kinds of hazardous waste acid into the same kinds of

wells, then it will have to account for its actions before the

state authorities. If, on the other hand, EOR wants to inject

into its wells an entirely different acid that is not hazardous

waste under Illinois law, then it will have to take its chances

in a future proceeding that is not at this time ripe for any fed

‐

eral

‐ court action.

We A FFIRM the judgment of the district court.