On January 6, 2023, the U.S. Court of Appeals for the Third Circuit rejected several challenges to a consent decree (CD) originally entered in 1996. United States v. Brace et al. involved conduct on defendant’s farm that allegedly violated the 1996 consent decree. Defendant argued that the CD was unenforceable because it was ambiguous and that a government official had approved of the allegedly violative actions. The Third Circuit rejected these arguments and upheld the district court’s ruling that defendant had violated the CD.
On March 25, 2022, EPA Administrator Michael Regan issued a memorandum titled “Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency” (the Memorandum). The Memorandum revokes the memo and directive issued by former administrator Scott Pruitt, who had sought to foreclose a practice described by some as “sue and settle,” whereby groups would file a lawsuit that would be resolved by a settlement with EPA that would lead to new regulatory policies. (more…)