When Does A Judge Refuse An Unopposed Motion To Enter A Consent Decree?

Last week, Judge John Copenhaver refused to allow a motion by the United States to enter a consent decree that would have resolved government claims against DuPont concerning alleged violations of the Clean Air Act, CERCLA, and EPCRA at its facility in Belle, West Virginia. The motion was unopposed.

Instead, Judge Copenhaver ordered the United States to file a revised memorandum in support and he specifically directed that the memorandum address certain issues that concerned him, including:

• The strength of the government's case
• How the government calculated penalty
• What the potential statutory penalties were for the alleged violations, and
• Whether the remediation steps described in the consent decree were otherwise required under applicable law.