United States District Court, D. Maine
BROCK HORNBY UNITED STATES DISTRICT JUDGE
the United States Attorney General's authority and at the
Environmental Protection Agency's request, the United
States has asked this Court to approve and enter a decree
against the defendants in connection with a Complaint the
United States filed in this Court on March 25, 2019. The
Complaint charges that the defendants have been emitting
volatile organic compounds (VOCs) beyond approved limits at
their petroleum storage facility in South Portland, Maine,
violating the Clean Air Act and the Maine State
Implementation Plan. The defendants have consented to the
proposed decree; in other words, the parties have settled the
case, and they want this Court to order the relief they have
agreed on. There was a public comment period on the proposed
decree from April 1 until July 1, 2019.
United States asserts that this Court's role in deciding
whether to approve the settlement and the decree is limited.
Gov't's Mot. to Enter Consent Decree at 15 (ECF No.
19). It states that it is up to the United States whom to sue
and on what claims-in this case, the Complaint addressed only
the formation of ground-level ozone that may occur as a
result of excess or unlicensed emissions of volatile organic
compounds (VOCs) at the defendants' South Portland
facility-and that the Court is to evaluate only whether, in
light of the Complaint's scope as filed, the United
States' proposed decree is fair (procedurally and
substantively), adequate, reasonable, faithful to the Clean
Air Act's objectives, and not illegal, the product of
collusion or against the public interest. Gov't's
Mot. to Enter Consent Decree at 16-18.
support of the proposed decree, the United States has filed a
motion, a few declarations, all the public comments it
received (about 90, almost universally critical), and its
response to the comments. Gov't's Mot. to Enter
Consent Decree & attached exhibits. The defendants have
ruling on the motion to enter the decree, I ask the parties
to address the following:
assessing the procedural fairness of a consent decree, courts
customarily look at the litigation history, and the risks and
costs of litigation. In City of Bangor, the First
Circuit added: “To gauge procedural fairness, ‘a
court should ordinarily look to the negotiation process and
attempt to gauge its candor, openness, and bargaining
balance.'” City of Bangor v. Citizens
Commc'ns Co., 532 F.3d 70, 96 (1st Cir. 2008). Often
in such cases, the lawsuit has been pending in the court for
years and the court therefore has institutional knowledge of
the adversarial and negotiation process that has occurred, as
well as the factual and legal risks and issues. Here, there is no
such history because the United States filed the Complaint
the same date it filed the proposed decree settling the case.
The defendants have not answered the Complaint, so I do not
even know what is factually or legally contested, nor what
affirmative defenses might be available. Moreover, the United
States has provided only generalities about the
litigation's risks and costs,  and unsupported assertions
that negotiations were hotly contested and at arms'
length. Should the record contain more for me to
consider on this issue?
government refers to actions taken by state and local
authorities since it lodged the proposed decree.
Gov't's Mot. to Enter Consent Decree at 24, 26. Is
there legal authority supporting the argument that those
voluntary actions by others are relevant to my assessment of
the proposed consent decree and its scope?
proposed decree contains a section on procedures and burden
of proof for how it can be enforced in this Court in the
future. See Proposed Consent Decree Section X,
¶¶ 50-55 (ECF No. 4-1). Does this Section affect
the Court's contempt power and the legal standards for
its exercise? Have other courts adopted these procedures and
burdens of proof? What is the authority for them?
parties shall file any response by November 22, 2019.
 In City of Bangor v. Citizens
Communications Co., the First Circuit stated:
In suits involving the United States, courts have
developed a three-pronged inquiry: is the decree
“reasonable, faithful to the statute's objectives,
and fair (both procedurally and substantively)”? This
inquiry is similar to the one used by courts when reviewing
consent decrees generally: “District courts must review
a consent decree to ensure that it is ‘fair, adequate,
and reasonable; that the proposed decree will not violate the
Constitution, a ...