No Deference to State Settlements Under CERCLA? No Problem!

I will confess that I do enjoy being correct.  In 2014, the 9th Circuit Court of Appeals refused to defer to a state agency determination of the procedural and substantive fairness of a CERCLA consent decree.  procedural-fairness (1)Various parties and commentators promptly began, if I may say so, to run around like chickens with their heads cut off.  However, I remained calm.  I stated then:

I’m assuming that, on remand, the district court will engage in the required review and again approve the settlements.

On July 13, the District Court on remand did exactly that.  In a concise opinion, Judge Jorgenson ran through the established criteria used to establish procedural and substantive fairness and – properly – blessed the settlements.

The original 9th Circuit decision did no more than ensure that district courts would not rubber stamp state consent decrees under CERCLA.  This is a good outcome, one which did not impose any unreasonable burden either on state agencies or district courts.

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