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9th Circuit's new rules for consent decrees

J. Craig Williams writes that the 9th Circuit's Wednesday opinion in U.S. v. Asarco creates two additional things to overcome before a consent decree can be modified. Here's his primer:

"Previously, we had just two hurdles:  (1) show a significant changes in the factual conditions or in the law warranting modification; and, (2) whether the proposed modification is suitably tailored to resolve the problems created by the changed factual or legal conditions.  Those two hurdles are not news (that's been the law since the 1992 Supreme Court case of Rufo v. Inmates of Suffolk County).

"The addition of a third and fourth hurdle, however, is the news from Asarco.  Now, the party trying to modify the Consent Decree must also show that:  (3) the changed conditions make compliance with the consent decree more onerous, unworkable or detrimental to the public interest; and, (4) the changed conditions were not anticipated at the time the Consent Decree was signed.  To make matters worse, the Court described these last two hurdles as 'heavy burdens.'  But there's hope: if the changed conditions were anticipated, then the private party can still obtain a modification of the Consent Decree if the party can show a reasonable effort to comply with the Decree. "

Posted by Laurel Newby on December 8, 2005 at 09:21 AM | Permalink | Comments (0) | TrackBack (0)

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