When negotiating consent decrees with a government agency, should the fact that the agency is a state or federal agency matter? If a state is not accorded the same deference toward its decision to enter into consent decrees—because it is enforcing a federal environmental law—how does the strategy change for state agencies and private parties? A recent decision in the U.S. Court of Appeals for the Ninth Circuit has brought these questions up in the context of the Comprehensive Environmental Response, Compensation and Liability Act. The decision brings real concerns about the increase of time and resources that may be required in order to meet the burden required for approval of a consent decree in which a state agency is seeking approval.
Section 107(a) of CERCLA allows both the federal government and the state to bring a claim against potentially responsible parties for response costs incurred by the United States or the state. Congress encouraged settlements by providing parties that enter into a judicially approved consent decree with protection from contribution claims brought by other potentially responsible parties.
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