Last week, Judge John Copenhaver refused to allow a motion by the United States to enter a consent decree that would have resolved government claims against DuPont concerning alleged violations of the Clean Air Act, CERCLA, and EPCRA at its facility in Belle, West Virginia.  The motion was unopposed.

Instead, Judge Copenhaver ordered the United States to file a revised memorandum in support and he specifically directed that the memorandum address certain issues that concerned him, including:

• The strength of the government’s case

• How the government calculated penalty

• What the potential statutory penalties were for the alleged violations, and

• Whether the remediation steps described in the consent decree were otherwise required under applicable law.

How does the government fail to win an unopposed motion to enter?  After all, the decree did require payment of a $1.275M penalty and various remedial measures.  It probably did not help that the alleged violations sounded quite serious, involving multiple releases of some extremely hazardous materials, including a release of phosgene that killed a worker.  Moreover, the complaint alleged that DuPont violated its own procedures concerning the handling of these extremely hazardous materials.

It also did not help that the government’s memorandum in support of the motion to enter was barely five (5) pages long, and was “composed almost entirely of prefatory language and boilerplate.”  After pointing out that entry of a consent decree does not simply implement a compromise between the parties, but puts the court’s imprimatur on the deal, Judge Copenhaver concluded that the motion did not provide the information the Court required to sanction the settlement.

It will be interesting to see how the government responds, since it presumably wants the decree entered, but presumably also also wants to avoid acknowledging anything other than generic litigation risks.

As a practical matter, it’s going to be difficult for Judge Copenhaver to second-guess the government, but the decision is still a useful reminder that a consent decree is not just a court approval of a deal between to private parties.  It formally puts the court in the position of adopting the decree as its own order.  As difficult as the review may be, it’s nice to see a judge not simply rubber-stamping a consent decree.