9th Circuit Says Consent Decree Cannot Circumvent Rulemaking

A recent Ninth Circuit decision calls into question the government’s practice of using consent decrees in a judicial proceeding to set policy for parties nationwide in environmental matters. In Conservation Northwest v. Sherman (Conservation Northwest II), No. 11-35729, 2013 WL 1760807 (9th Cir. Apr. 25, 2013), the court makes a critical distinction between consent decrees which temporarily modify a rule to achieve a particular result in a particular case, and consent decrees which purport to have broader applicability. Specifically, the court held it is an abuse of discretion for a federal court to “enter a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.”

 

A number of commentators and legislators have called attention to the government’s practice of setting national policy through settlement of individual lawsuits that raise novel issues. Setting policy in this way is said to deprive affected third parties of the right to meaningfully participate in the rule making process. In 2012, Republican legislators proposed the Sunshine for Regulatory Decrees and Settlements Act of 2012, which would have required that any party affected by a decree be given the right to intervene in the pending court action.  (More at: Marten Law, By Myles Conway and Daniel Timmons)