United States of America et al v. Cottage Bakery, Inc. et al

Filing 5

ORDER signed by Judge Kimberly J. Mueller on 9/27/12 DENYING WITHOUT PREJUDICE 4 Motion For Entry of Consent Decree. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
et al.,

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Plaintiff,

No. CIV S-12-1697 KJM JFM

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vs.
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COTTAGE BAKERY, INC., et al.,

ORDER

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Defendants
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Plaintiffs United States of America, acting on behalf of the Environmental

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Protection Agency, and San Joaquin Valley Unified Pollution Control District have filed a

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motion for the entry of a consent degree. They ask that the court enter the decree without further

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notice to defendants as defendants have consented to this procedure.

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I. Background

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On June 26, 2012, plaintiffs filed a complaint against defendants Cottage Bakery,

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Inc. and Ralcorp Frozen Bakery Products, Inc., alleging they had violated the Clean Air Act, 42

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U.S.C. § 7401, et seq., and applicable state laws and regulations in the operation of commercial

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bread ovens at a facility in Lodi. Complaint, ECF No. 1 ¶¶ 1, 10-11. On the same day, plaintiffs

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filed their motion for the court to enter the consent decree. In the application, they note that they
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published a notice announcing the decree in the Federal Register on July 2, 2012, 77 Fed. Reg.

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39262, and that no comments were received during the comment period. They also argue that

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the decree satisfies the purposes of the Clean Air Act as it brings defendants into compliance

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with California’s Implementation Plan and imposes a civil penalty. Finally they assert that the

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decree was the product of arms’ length negotiation. Motion, ECF No. 4 at 2-3.

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II. Analysis

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This court cannot approve a consent decree without satisfying itself that the

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decree is fundamentally fair, adequate and reasonable. United States v. State Of Oregon, 913

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F.2d 576, 580 (9th Cir. 1990). The review is deferential, particularly when the decree has been

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negotiated by the Department of Justice acting on behalf of a federal agency. United States v.

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Chevron, U.S.A., Inc., 380 F. Supp. 2d 1104, 1111 (N.D. Cal. 2005). Nevertheless, the court

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should not give the decree a “rubberstamp approval.” Id.

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In determining whether the agreement is fair, adequate and reasonable, the court

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examines procedural and substantive fairness; the former centers on the negotiation process,

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while the latter focuses on the extent to which the agreement represents a reasonable factual and

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legal determination. Id.

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The parties have told the court that the decree was the result of arms’ length

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negotiations, but have provided no support for this claim. Similarly, the parties describe the

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contents of the decree without providing any information about its costs and benefits. The court

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thus cannot make an independent evaluation of the procedural or substantive fairness of the

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proposed degree. Id. at 1111, 1113.

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IT IS THEREFORE ORDERED that the motion for the entry of the consent

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decree (ECF No. 4) is denied without prejudice.

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DATED: September 27, 2012.

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UNITED STATES DISTRICT JUDGE
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