State of Arizona v. Raytheon Company

concurring, in part, and dissenting, in part:

I agree with Part I of the majority’s decision where it concludes that the district court properly denied the intervening parties’ (“Intervenors”) request for declaratory relief and did not abuse its discretion in denying the Intervenors’ request for formal discovery. However, because I would conclude that the district court properly approved the proposed consent decrees, I dissent from Part II of the majority’s decision.

The issue on appeal is whether the district court abused its discretion in approving consent decrees that the State of Arizona entered into with a number of potentially responsible parties (“PRPs”) under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-75 . In the process of deciding that question, however, the majority raises and decides— incorrectly in my opinion — a different issue: the degree to which a district court ought to defer to a state’s decision to enter into an early settlement with PRPs under CERCLA. Although the majority recognizes that state agencies may have environmental expertise and be entitled to “some deference” with regard to “environ…

Opinion by Judge MILAN D. SMITH, Jr.; Partial Concurrence and Partial Dissent by Judge CALLAHAN.

OPINION

In this appeal, we address a district court’s obligation to scrutinize the terms of a proposed consent decree under the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601-75 (CERCLA). In so doing, we reaffirm that a district court has an “obligation to independently scrutinize the terms of [such agreements],” by, inter alia, comparing “the proportion of total projected costs to be paid by the [settling parties] with the proportion of liability attributable to them.” United States v. Montrose Chem. Corp. of Cal., 50 F.3d 741, 747 (9th Cir.1995) (internal quotation marks and emphasis omitted).

We conclude that the district court properly declined to issue declaratory relief regarding the intervening parties’ (Inter-venors) future CERCLA liability. We further hold that the district court erred in entering the parties’ proposed CERCLA consent decrees, because the court failed to independently scrutinize the terms of the agreements, and in so doing, afforded undue deference to the Arizona Department of Environmental Quality (ADEQ). We therefore…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ARIZONA, No. 12-15691 Plaintiff-Appellee, D.C. No. v. 4:10-cv-00634-

CKJ

CITY OF TUCSON,

Intervenor-Plaintiff–Appellee,

OPINION

v.

ASHTON COMPANY INCORPORATED

CONTRACTORS AND ENGINEERS;

BALDOR ELECTRIC COMPANY; DON

MACKEY OLDSMOBILE CADILLAC,

INC.; DUNN-EDWARDS

CORPORATION; DURODYNE, INC.;

FERSHA CORPORATION; FLUOR

CORPORATION; GENERAL DYNAMICS

CORPORATION; GOODYEAR TIRE &

RUBBER COMPANY; LOCKHEED

MARTIN CORPORATION; HOLMES

TUTTLE FORD, INC.; INDUSTRIAL

PIPE FITTINGS, LLC; TUCSON

FOUNDRY & MANUFACTURING

INCORPORATED; ROWE ENTERPRISES

INCORPORATED; PIMA COUNTY

COMMUNITY COLLEGE DISTRICT;

ROLLINGS CORPORATION; TEXTRON

INCORPORATED; ABB

INCORPORATED; COMBUSTION ENGINEERING INCORPORATED;

TEXAS INSTRUMENTS, INC.; TUCSON

DODGE INCORPORATED; WARNER

PROPELLER & GOVERNOR

COMPANY, LLC; FLUOR

ENTERPRISES, INC.,

Defendants-Appellees,

v.

RAYTHEON COMPANY; PIMA

COUNTY,

Intervenors-Appellants,

UNIVERSITY OF ARIZONA; ARIZONA

BOARD OF REGENTS; TOMKINS

INDUSTRIES, INC.; TUCSON AIRPORT

AUTHORITY; TUCSON ELECTRIC

POWER…