32 ELR 20440 -- United States v. City of Detroit

United States v. City of Detroit

No. 01-1277 (UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT January 11, 2002)

ELR Digest

The court vacates a district court order requiring the U.S. Army Corps of Engineers to accept dredged material in order to prevent the frustration of a consent decree designed to address water pollution problems around Detroit, Michigan. After the state revised the city's national pollutant discharge elimination system permit, the city fell out of compliance. The city and the state then entered a consent decree, part of which required the city to dredge and dispose of 146,000 cubic meters of sediment from a contaminated creek. The city sought the Corps' permission to dispose of the sediment at a Corps-operated confined disposal facility. The Corps eventually agreed to allow disposal of the sediment, but only after the state approved and only after the state received U.S. Environmental Protection Agency (EPA) and U.S. Fish and Wildlife Service (FWS) approval, completed an environmental impact statement under the National Environmental Policy Act, and agreed to hold the Corps harmless for any liability stemming from disposal of the sediment. The state refused to obtain EPA and FWS approval on the grounds it would take too much time. In the meantime, the city undertook another project, the funding of which required the disposal of the sediment. Therefore, the state and the city sought to compel the Corps to accept the sediment. The district court ordered the Corps to accept the sediment.

The court first holds, however, that unlike the enforcement of a court order, the district court lacked the authority to enforce a consent decree against a nonparty such as the Corps. Although the All Writs Act allows a court authority over nonparties who might frustrate the implementation of a court order, that authority does not apply to consent decrees voluntarily entered into between parties.

[The district court's decision in this litigation is published at 31 ELR 20307.]

The full text of this decision is available from ELR (10 pp., ELR Order No. L-438).

Counsel for Plaintiff
Peter A. Caplan, Ass't U.S. Attorney
U.S. Attorney's Office
211 W. Fort St., Ste. 2300, Detroit MI 48226
(313) 226-9100

Counsel for Defendant
Beth S. Gotthelf
Seyburn, Kahn, Ginn, Bess, Deitch & Serlin
2000 Town Ctr., Ste. 1500, Southfield MI 48075
(810) 353-7620

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]