Protecting Environmental Consent Decrees form Third Party Challenges
By Timothy K. Webster
INTRODUCTION
This note is premised upon two observations: The first is that consent decrees have become the tools of choice for settling most federal environmental enforcement actions. In fact, Congress has legislatively mandated that the Environmental Protection Agency (EPA) settle certain suits through consent decrees, rather than non-judicial contracts or administrative orders. Consent decrees are favored for resolving these suits, and for ending other forms of environmental litigation, in part because they can embody injunctive relief which is jointly crafted by the parties. The court which enters the decree retains jurisdiction over it, and thus violations of the settlement are immediately actionable.
The second observation is that any given environmental “violation” may give rise to several different causes of action. For example, excessive discharge of pollutants from a factory into an adjacent river may be prosecuted by private citizens as a state common law nuisance, by a state agency pursuant to the federal regulatory scheme, by the EPA acting under the Federal Water Pollution Control Act (FWPCA), or, to come full circle, by citizens acting as private attorneys general. These and other permutations exist with respect to nearly every environmental wrong, and often each class of plaintiffs—private, state, or federal—has multiple causes of action from which to choose.
Taken together, these observations quickly give rise to several conundrums: can a settlement between any one plaintiff and the violator fully settle the case? May a court, consistent with due process, enter a settlement which may affect the rights of parties who have independent causes of action available to them? Will a violator risk a settlement without assurance that it is protected against future collateral litigation? Until recently, consent decrees were immune, except under limited circumstances, from attack by parties who had not formally intervened in the original suit. This “collateral attack” doctrine, however, has now been rejected by the Supreme Court,8 leaving consent decrees open to third party challenges.
This note focuses on the assailability of environmental consent decrees by third parties. Part I examines the history and use of consent decrees, and introduces situations in which they may be open to collateral attack. Part II reviews the methods by which such attacks could be avoided using currently available procedural devices. Part III suggests congressional strategies for encouraging the use of consent decrees by uniformly discouraging collateral challenges though mandatory intervention rules or by employing administrative law notice and comment requirements. Finally, Part IV proffers the conclusion that while either careful attention to the rights of third parties or new rules may eliminate most uncertainty in environmental settlements, some circumstances may pose problems that cannot be avoided. Thus, litigants must calculate and allocate the risks of third party intervention in any settlement they strike.
This note is premised upon two observations: The first is that consent decrees have become the tools of choice for settling most federal environmental enforcement actions. In fact, Congress has legislatively mandated that the Environmental Protection Agency (EPA) settle certain suits through consent decrees, rather than non-judicial contracts or administrative orders. Consent decrees are favored for resolving these suits, and for ending other forms of environmental litigation, in part because they can embody injunctive relief which is jointly crafted by the parties. The court which enters the decree retains jurisdiction over it, and thus violations of the settlement are immediately actionable.
The second observation is that any given environmental “violation” may give rise to several different causes of action. For example, excessive discharge of pollutants from a factory into an adjacent river may be prosecuted by private citizens as a state common law nuisance, by a state agency pursuant to the federal regulatory scheme, by the EPA acting under the Federal Water Pollution Control Act (FWPCA), or, to come full circle, by citizens acting as private attorneys general. These and other permutations exist with respect to nearly every environmental wrong, and often each class of plaintiffs—private, state, or federal—has multiple causes of action from which to choose.
Taken together, these observations quickly give rise to several conundrums: can a settlement between any one plaintiff and the violator fully settle the case? May a court, consistent with due process, enter a settlement which may affect the rights of parties who have independent causes of action available to them? Will a violator risk a settlement without assurance that it is protected against future collateral litigation? Until recently, consent decrees were immune, except under limited circumstances, from attack by parties who had not formally intervened in the original suit. This “collateral attack” doctrine, however, has now been rejected by the Supreme Court,8 leaving consent decrees open to third party challenges.
This note focuses on the assailability of environmental consent decrees by third parties. Part I examines the history and use of consent decrees, and introduces situations in which they may be open to collateral attack. Part II reviews the methods by which such attacks could be avoided using currently available procedural devices. Part III suggests congressional strategies for encouraging the use of consent decrees by uniformly discouraging collateral challenges though mandatory intervention rules or by employing administrative law notice and comment requirements. Finally, Part IV proffers the conclusion that while either careful attention to the rights of third parties or new rules may eliminate most uncertainty in environmental settlements, some circumstances may pose problems that cannot be avoided. Thus, litigants must calculate and allocate the risks of third party intervention in any settlement they strike.
