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February 01, 2012

ABA Expresses Opposition to Consent Decree Bill

The ABA reiterated its opposition last month to proposed legislation that the association maintains could be the “death knell” for many types of federal court consent decrees.

The bill, H.R. 3041, would authorize state or local governments and related officials sued in their official capacity or their successors to file motions to modify or vacate existing federal court consent decrees four years after the decree was originally entered or once the highest elected state or local government official authorizing the consent decree leaves office, whichever occurs first. Once a motion is filed, the burden of proof would shift to the party that originally sought the decree –usually a federal agency – to demonstrate that it should remain in effect. If the burden of proof is not met, the court would be required to terminate the consent decree. Even if the burden of proof is met, the court would be required to narrow the consent decree to the maximum extent possible.

In a letter sent to a House Judiciary subcommittee prior to a Feb. 3 hearing on the bill, ABA Governmental Affairs Director Thomas M. Susman emphasized that for many years consent decrees have been very helpful in resolving a wide variety of claims brought by the federal government, including suits to preserve public health and safety, enforce environmental regulations, and protect individuals rights. By entering into consensual agreements, Susman said, the federal government is able to craft solutions with states, localities and private parties that a trial court could not otherwise order.

He further explained that legislation is unnecessary because the Supreme Court decision in Frew v. Hawkins, 540 U.S. 431 (2004), confirmed the federal courts’ existing authority to vacate or modify consent decrees in appropriate circumstances.

In cautioning that H.R. 3041, if enacted, could be the end of federal court consent decrees involving states and localities, Susman said, “By discouraging federal government agencies, state or local governments, companies and private individuals from settling their legal disputes and entering into consent decrees, the legislation would result in increased and unnecessary litigation, reduced flexibility and greater burdens on federal courts and agencies, and further erosion of the independence of the federal judiciary.”

During the hearing before the House Judiciary Subcommittee on Courts, Commercial and Administrative Law, proponents maintained that the legislation is necessary because consent decrees bind not only the elected officials who consented to the decree but also their successors, who often have a difficult time changing policy that has been embedded in the court orders. David Schoenbrod and Ross Sandler, of New York Law School, testified in favor of the bill and argued that it provides a procedure that protects plaintiff’s rights while still deferring appropriately to the choices made by state and local.

John C. Cruden, president of the Environmental Law Institute, spoke against the bill, testifying that adverse consequences would be particularly acute in environmental cases that frequently involve complex activities such as dredging contaminants from rivers, installing sophisticated equipment, or repairing damaged wetlands.

No further action has been scheduled on the bill. Similar legislation failed to pass during the 109th and 110th Congresses when the ABA worked closely with a coalition of more than 80 legal and public policy organizations to defeat the measures.


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