On January 23, 2026, the Illinois Supreme Court answered a certified question from the United States Court of Appeals for the Seventh Circuit: what relevance, if any, does a permit or regulation authorizing emissions (generally or at particular levels) play in assessing the application of a pollution exclusion within a standard-form commercial general liability policy? The Illinois Supreme Court in Griffith Foods Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, P.A., 2026 IL 131710 found that permits or authorizations for emissions are “irrelevant” in applying the pollution exclusion, strengthening the ability of the pollution exclusion to bar coverage claims made over emissions and other pollution.

In Griffith Foods Int’l Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 134 F.4th 483 (7th Cir. 2025), Griffith Foods had been granted a permit by the Illinois Environmental Protection Agency for the use of the chemical ethylene oxide (EtO), and for 35 years, Griffith Foods emitted EtO into the surrounding community. Griffith Foods, 2026 IL 131710 ¶¶ 4, 8. These emissions allegedly caused injuries to the community, and in 2018, a government report stated that the EtO emissions were the cause, creating an outpouring of litigation. Id. at ¶ 4. National Union denied coverage to Griffith Foods, citing the pollution exclusion. Id. After a declaratory action was filed, the district court found that the standard pollution exclusion did not bar coverage for Griffith Foods because the EtO was emitted pursuant to a permit issued by the IEPA. Id. at ¶ 7. National Union appealed this ruling to the Seventh Circuit. Id. at ¶ 8.

The Seventh Circuit acknowledged tension between Illinois case law relating to pollution exclusions, specifically Am. States Ins. Co. v. Koloms, 177 Ill.2d 473, 687 N.E.2d 72 (Ill.1997) and Erie Ins. Exch. v. Imperial Marble Corp., 2011 IL App (3d) 100380, 957 N.E.2d 1214. (3d Dist. 2011).  See Griffith, 134 F.4th at 490. Koloms held that “the predominant motivation in drafting an exclusion for pollution-related injuries was the avoidance of the ‘enormous expense and exposure resulting from the ‘explosion’ of environmental litigation’” and limited pollution exclusions to “injuries caused by traditional environmental pollution.” Koloms, 687 N.E.2d at 82. In contrast, the appellate court in Imperial Marble concluded that the pollution exclusion was “arguably ambiguous as to whether the emission of hazardous materials in levels permitted by an IEPA permit constitutes traditional environmental pollution excluded under the [CGL] policy” and found the insurer owed a duty to defend. Imperial Marble, 2011 IL App (3d) 100380, ¶ 22. When the Seventh Circuit was presented with the question of whether a permit or authorization precludes application of the pollution exclusion under Illinois law, the Seventh Circuit certified the question to the Illinois Supreme Court to clarify Illinois law.

In a 6-0 ruling, the Illinois Supreme Court applied the logic in Koloms and found that a standard pollution exclusion in a commercial general liability policy is intended to preclude coverage for harmful environmental emissions, whether or not the emissions were authorized. Griffith Foods, 2026 IL 131710, ¶ 25. The Court stated:

Indeed, if the EtO emissions were not pollution, there would have been no need for the policyholders to obtain a permit from IEPA [Illinois Environmental Protection Agency] in the first place…“[i] other words, the permit allowing the policyholders to emit EtO did not, in some manner, render those emissions no longer pollution in the plain and ordinarily understood meaning of the word.”

Id. at ¶ 26.

The Illinois Supreme Court further stated that a permit or any other authorization that allows for emissions has “no relevance” in determining whether a pollution exclusion applies to bar coverage. Id. at ¶ 31. The Court’s opinion emphasized that the court “must not inject terms and conditions different from those agreed upon by the parties” and finding an exception to the pollution exclusion would undermine the exclusion’s purposes by contradicting its plain terms. Id. at ¶ 26.  The Illinois Supreme Court also overruled Erie Ins. Exchange v. Imperial Marble Corp., 2011 IL App (3d) 100380, and Country Mutual Ins. Co. v. Bible Pork, Inc., 2015 IL App (5th) 140211, as both of these cases found ambiguity as to whether a permit or authorization barred application of the pollution exclusion.

The Illinois Supreme Court’s ruling is a decisive win for insurers and strengthens the standard pollution exclusion. Now, a permit or government authorization for emissions does not create an exception to the exclusion, and policyholders seeking coverage for environmental claims based on authorized emissions may be afforded no coverage. Moreover, the Court’s ruling helps emphasize a key principle of insurance policy interpretation – the plain terms of a policy exclusion should be applied when determining the exclusion’s application, and courts should not inject their own terms and meaning into policy language. Not only does this ruling represent a win for insurers applying pollution exclusions, but it also helps insurers apply the plain language of policy exclusions going forward.

About Henry Rodriguez

Henry is an associate attorney in Tressler’s Insurance Services Practice Group. He provides insurance coverage analysis and litigation services for matters involving a wide variety of policies, including commercial and business liability policies. Prior to passing the Illinois Bar Exam, Henry worked as a law clerk at Tressler for more than two years, gaining experience in the areas of insurance, employment, aviation, HOA, and government law. Henry was also a Judicial Extern for Judge John Robert Blakey of the United States District Court for the Northern District of Illinois. Click here to read Henry’s full biography.