U.S. EPA has brought over 40 cases nationwide over the last decade to eliminate sanitary and combined-sewer overflows. The latest enforcement matter in Ohio was proposed to be resolved by the United States, the State of Ohio, and Defendant City of Akron in a Consent Decree that would have addressed sewer overflows involving an ecologically sensitive area, an enforcement priority, the Cuyahoga Valley National Park.

While a court’s rejection of a CWA consent decree is not unheard of (U.S. v. Lexington-Fayette Urban County Government, 2011 WL 1097755, (Mar. 22, 2011 E.D. Ky)), the vast majority of unopposed decrees are approved. The March 17, 2011, rejection of the unopposed Akron Consent Decree is notable because the Court found it to be unfair, inadequate, and not in the public’s best interests. The Department of Justice appealed the ruling to the Sixth Circuit Court of Appeals on May 16.

Although the Court gave numerous reasons for finding the proposed Consent Decree inadequate, the Judge focused on the need to promptly address the ecological sensitivity of the State of Ohio’s only national park, a factual context that makes this case unusual. Perhaps more interestingly, Judge John Adams pragmatically analyzed the lack of progress in decade-long negotiations between the City (see Akron Mayor’s views) and U.S. EPA, which he viewed as a highly problematic trend likely to continue if the Consent Decree was approved. The Court also astutely observed that the principal benefit of a settlement is to avoid litigation, but because the parties were likely to freely use the Consent Decree’s judicial dispute resolution provision, the settlement would paradoxically trigger innumerable “mini-trials” that the Court would need to adjudicate over the lengthy term of the Consent Decree, thereby defeating the benefit of a settlement.

We look forward to updating you when the Sixth Circuit Court of Appeals issues its decision on the pending appeal.