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United States v. Global Partners LP

United States District Court, D. Maine

October 31, 2019




         Under 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.

         The 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.[1]

         In 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 filed nothing.

         Before ruling on the motion to enter the decree, I ask the parties to address the following:

         1. In 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.[2] 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, [3] and unsupported assertions that negotiations were hotly contested and at arms' length.[4] Should the record contain more for me to consider on this issue?

         2. The 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?

         3. The 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?

         The parties shall file any response by November 22, 2019.

         So Ordered.



[1] 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 ...

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