UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Nos. 93-1691 93-2372
UNITED STATES OF AMERICA, ET AL., Plaintiffs, Appellees,
v.
CHARLES GEORGE TRUCKING, INC., ET AL., Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before Selya and Cyr, Circuit Judges,
and Zobel,* District Judge.
Richard E. Bachman, with whom John A. King and Hale,
Sanderson, Byrnes & Morton, were on brief, for appellants.
John C. Cruden, with whom Louis J. Schiffer, Acting
Assistant Attorney General, Robert H. Oakley, David W.
Zugschwerdt, David C. Shilton, and Elizabeth A. Peterson,
Attorneys, U.S. Dep't of Justice, and Ruthann Sherman, Office of
Regional Counsel (EPA), for the federal appellee. Scott Harshbarger, Attorney General, Karen McGuire and
Margaret Van Deusen, Assistant Attorneys General, and Nancy
Preis, Special Assistant Attorney General, on brief for appellee
Commonwealth of Massachusetts. Paul B. Galvani, with whom Thomas H. Hannigan, Jr., Jay
Bradford Smith, and Ropes & Gray were on brief, for various
appellees. Laurence M. Johnson, Fordham & Starrett, Michael D. Chefitz,
and Gilberg, Kurent & Kiernan, on brief for appellees Charles
George, Jr., et al. Mark S. Granger and Morrison, Mahoney & Miller on brief for
appellee Boston Edison Co.
September 13, 1994
*Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. These appeals arise out of two SELYA, Circuit Judge.
consent decrees that together resolve a majority of the cost
recovery disputes associated with the cleanup of a hazardous
waste site in Tyngsboro, Massachusetts (the Site). Appellants,
who are the principal owners and operators of the Site,1 strive
to convince us that the district court misjudged the relevant
goals of the Comprehensive Environmental Response, Compensation &
Liability Act (CERCLA), 42 U.S.C. 9601-9675, and, therefore,
erred in placing its imprimatur on the decrees. We are not
persuaded.
I. BACKGROUND
This litigation dates back to 1985, when the United
States and the Commonwealth of Massachusetts filed separate cost
recovery actions, soon consolidated, against appellants and other
alleged owner-operators (collectively, "the junior Georges"),
including Charles George, Jr. and James George (children of
Charles and Dorothy George), and the sons' firm, C & J Trucking
Co. The federal government's complaint alleged claims under 42
U.S.C. 9604(a), 9604(b), 9604(e), 9607(a), 6928(a) & 6928(g).
The Commonwealth's complaint alleged claims under 42 U.S.C.
9607(a) and Mass. Gen. Laws ch. 21E, 5.
The early procedural history of the struggle is
described in a previous opinion of this court, see United States
v. Charles George Trucking Co., 823 F.2d 685 (1st Cir. 1987), and
1Charles George, his wife Dorothy George, Charles George Trucking, Inc., and Charles George Land Reclamation Trust appear as appellants. We are not required to differentiate among them.
need not be revisited. Thereafter, acting on plaintiffs'
motions for partial summary judgment, the district court adjudged
appellants to be jointly and severally liable for the costs of
cleanup. However, the court left open the question of the junior
Georges' liability due to factual disputes anent the degree of
control that they exercised over the Site.
In June of 1989, plaintiffs amended their complaints to
add twenty-four generator and transporter defendants. In turn,
these defendants brought third-party claims for contribution
against thirty-one other putative generators. They also filed
counterclaims against the plaintiffs, charging negligent
regulation. Appellants emulated this tactic, serving similar
counterclaims.
The district court intervened to impose some structure
on this welter of claims and cross-claims. By a case management
order (CMO) dated April 12, 1990, Judge Woodlock deemed the
third-party defendants to have asserted all available cross-
claims and counterclaims against other parties, but precluded the
plaintiffs from asserting claims directly against the third-party
defendants. The judge supplemented the CMO in a subsequent bench
ruling through which he limited development of so-called trans-
shipment issues, that is, issues involving wastes hauled to the
Site after first being dumped elsewhere.
By the fall of 1991, the dust had settled. A new round
of summary judgment motions had been heard (most were denied),
and trialworthy issues had been identified as to the liability of
all defendants, save only the appellants, and as to virtually all
aspects of the remedial phase. Unresolved questions also
remained as to the counterclaims asserted against the plaintiffs.
The likelihood of lengthy litigation loomed large.
Before too long, settlement negotiations began in
earnest. After a fitful start, the district court appointed
Chief Judge Tauro as a settlement master.2 Numerous meetings
among the parties yielded an agreement by the plaintiffs, in
essence, to extinguish all claims against the generators and
transporters (including the third-party defendants) in exchange
for a global "cash-out" payment of approximately $36,000,000.
The generators and transporters were to decide among themselves
how to share the aggregate cost of the settlement. The federal
and state governments agreed to contribute an additional
$3,103,712 as a token of their responsibility. After further
negotiations, again held under Judge Tauro's auspices, the
plaintiffs and the junior Georges also reached an accord,
proposing to extinguish the latters' liability in return for a
payment of $3,100,000. Though appellants participated in
bargaining sessions from time to time, they eventually withdrew
from the negotiations. The claims against them remain
unresolved.
2Judge Tauro is the Chief Judge of the United States District Court for the District of Massachusetts. We applaud Judges Tauro and Woodlock for their creative approach to the resolution of this complex case. We urge other jurists to consider collaborative efforts of this sort when circumstances warrant.
The settling parties prepared two proposed consent
decrees. They presented the first, embodying the settlement
reached by the plaintiffs with the generators and transporters,
to the district court on December 17, 1992. They presented the
second, embodying the plaintiffs' suggested settlement with the
junior Georges, on July 27, 1993. Both were advertised in the
Federal Register, see 28 C.F.R. 50.7, but elicited no public
comment.
At a hearing held on May 24, 1993, Judge Woodlock
applied the standards set forth in United States v. Cannons
Engineering Corp., 899 F.2d 79, 85 (1st Cir. 1990), and found the
generator/transporter decree to be reasonable, fair, and faithful
to CERCLA's objectives. Following a separate hearing held on
November 12, 1993, the court made similar findings in regard to
the second decree. Judge Woodlock entered both decrees under
Fed. R. Civ. P. 54(b), thus permitting appellants, as the lone
objectors, to prosecute these appeals.
II. STANDARD OF REVIEW
Despite appellants' animadversions, Cannons has not
rusted. It teaches that CERCLA consent decrees must be
reasonable, faithful to the statute's objectives, and fair (both
procedurally and substantively). Cannons, 899 F.2d at 85. The
battle over whether a particular decree achieves these benchmarks
will usually be won or lost in the trial court. By the time such
decrees arrive on the doorstep of the court of appeals, they are
"encased in a double layer of swaddling." Id. at 84. In the
first place, a trial court, without abdicating its responsibility
to exercise independent judgment, must defer heavily to the
parties' agreement and the EPA's expertise. See id. In this
case, the inner layer of swaddling is especially thick because of
the role played by the distinguished special master in overseeing
negotiations. The second basis for deference is equally
compelling. Because an appellate court ordinarily cannot rival a
district court's mastery of a factually complex case a mastery
that is often, as in this instance, acquired through painstaking
involvement over many years the district court's views must
also be accorded considerable respect.
Largely in consequence of these layers of protective
swaddling, an appellate tribunal may overturn a district court's
decision to approve or reject the entry of a CERCLA consent
decree only for manifest abuse of discretion. In this case,
then, the decision below stands unless the objectors can show
that, in buying into either or both of the decrees, the lower
court made a serious error of law or suffered a meaningful lapse
of judgment. See id.
III. DISCUSSION
Appellants advance four sets of arguments in support of
their claim that the district court too freely accepted the
proposed settlement. We proceed to examine each of the four
components that comprise this asseverational array.
A. Reasonableness.
A CERCLA consent decree is reasonable when it provides
for an efficacious cleanup, and at the same time adequately
compensates the public for the cost of that cleanup. See id. at
89-90. Efficacy is not merely a function of how close a
settlement comes to meeting a scientifically defined ideal, nor
is adequacy merely a function of how close a settlement comes to
meeting an estimate of projected costs. These are, rather,
pragmatic concepts, and evaluating them requires common sense,
practical wisdom, and a dispassionate assessment of the attendant
circumstances.
In this case, appellants question the efficacy of the
proposed cleanup, and claim that they are entitled to an
evidentiary hearing on the matter. In support of the first half
of this objection, appellants do little more than plagiarize
plaints from prior pleadings filed by other parties in opposition
to plaintiffs' previous motions for partial summary judgment;
they do not attempt to explain these points, fail to set forth
supporting documents in a record appendix, and rely on rhetoric
to the exclusion of either record citations or scientific fact.
We reject appellants' objection on two bases. First,
it is presented to us in a slipshod fashion, without developed
argumentation, and is, therefore, not entitled to substantive
consideration. See Ryan v. Royal Ins. Co., 916 F.2d 731, 734
(1st Cir. 1990); United States v. Zannino, 895 F.2d 1, 17 (1st
Cir.), cert. denied, 494 U.S. 1082 (1990). Second, our
independent review of the record leaves us confident that Judge
Woodlock acted well within the realm of his discretion in
concluding that the consent decrees incorporated a suitable set
of remedies.
The second half of the objection is similarly
unavailing. The district court did not err in declining to hold
an evidentiary hearing to delve into matters of efficacy.
Requiring hearings to review the reasonableness of CERCLA consent
decrees as a matter of course would frustrate the statutory
objective of expeditious settlement. See Cannons, 899 F.2d at
94. Consequently, requests for evidentiary hearings are, for the
most part, routinely denied and properly so at the consent
decree stage in environmental cases. See, e.g., United States v.
Metropolitan St. Louis Sewer Dist., 952 F.2d 1040, 1044 (8th Cir.
1992); State of Ariz. v. Motorola, Inc., 139 F.R.D. 141, 148 (D.
Ariz. 1991); United States v. Bliss, 133 F.R.D. 559, 568 (E.D.
Mo. 1990); United States v. Rohm & Haas, 721 F. Supp. 666, 686-87
(D.N.J. 1989) (collecting earlier cases). While a hearing may be
necessary or desirable in special circumstances, see, e.g.,
United States v. Town of Moreau, 751 F. Supp. 1044, 1051
(N.D.N.Y. 1990), such cases are relatively rare.
This case invokes the general rule, not the long-odds
exception to it. The court had ample information before it, and,
even without an evidentiary hearing, the parties had "a fair
opportunity to present relevant facts and arguments to the court,
and to counter the opponent's submissions." Aoude v. Mobil Oil
Corp., 862 F.2d 890, 894 (1st Cir. 1988). Moreover, appellants
have pointed to nothing out of the ordinary that would suggest a
particularized need for an evidentiary hearing. Under these
circumstances, we turn a deaf ear to appellants' lament.3
B. Fidelity to the Statute.
Among the overarching goals of CERCLA recognized by the
courts are "accountability, the desirability of an unsullied
environment, and promptness of response activities." Cannons,
899 F.2d at 91. Appellants insist that Judge Woodlock's
endorsement of the consent decrees undermined one of these goals
accountability in two separate ways.
Appellants' main argument is that the allocation method
embodied in the first consent decree failed to specify each
individual generator's and transporter's degree of culpability.
As a factual matter, appellants are correct; the consent decrees
did no more than assign payment responsibilities to classes of
potentially responsible parties (PRPs), leaving the question of
allocation inter sese to the class members themselves. But we
see no reason to prohibit such an approach. Realistically, a
government agency, in the midst of negotiations, is in no
position to put so fine a point on accountability. We,
therefore, endorse, in general, EPA's practice of negotiating
with a representative group of PRPs and then permitting the group
members to divide the burden of the settlement among themselves.
This is, as one court has said, a "practical and
3Appellants also disparage the adequacy of the generator/transporter settlement from a financial standpoint. As we explain in Part III(B), infra, their criticism is unfounded.
reasonable process for achieving settlements." United States v.
Acton Corp., 733 F. Supp. 869, 873 (D.N.J. 1990). It is also
faithful to CERCLA's goals. After all, the ultimate measure of
accountability in an environmental case is the extent of the
overall recovery, not the amount of money paid by any individual
defendant.
Over and beyond these generalities, there is an
especially compelling reason for accepting a class-wide
allocation here. Judge Woodlock supportably found that
appellants' records were wholly inadequate. A lack of reliable
records renders it impossible, as a practical matter, for a court
to make reasoned findings concerning the relative contributions
of particular generators or transporters to the aggregate harm.
So it is here. And, moreover, because the shortage of records
can be directly attributed to appellants' stewardship of the
Site, they can scarcely be heard to complain that the settling
parties resorted to, and the court then approved, a class-wide
allocation.
Appellants' fallback position is predictable: in a
refrain evocative of one of their attacks on the decrees'
reasonableness, see supra note 3, they insinuate that the first
consent decree compromised the goal of accountability by setting
too modest a price tag on the generator/transporter settlement.
Appellants have an easily envisioned stake in this aspect of the
matter: as the sole non-settling defendants, they are
potentially liable for the full difference between the costs of
cleanup and the total amount paid by the settling PRPs. See 42
U.S.C. 9613(f)(2), 9622(h)(4); see also United Technologies
Corp. v. Browning-Ferris Indus., Inc., F.3d , (1st
Cir. 1994) [No. 93-2253, slip op. at 17-18] (explaining interface
between settlement and liability of PRPs for contribution in
CERCLA cases). If, say, the overall clean-up costs eventually
total $70,000,000 the highest of the differing estimates that
have been bandied about appellants are staring down the barrel
of a $21,000,000 shortfall. Appellants claim their aggregate net
worth amounts to only a tiny fraction of this exposure. On this
basis, they contend that the plaintiffs sold out too cheaply, for
many of the settling parties have very deep pockets.
Although we understand appellants' consternation, these
considerations are virtually irrelevant. In the first place, the
district court found that appellants are liable for all clean-up
costs and that finding is not disputed on appeal. As is true
of any assessment of compensatory damages, the liable party's
ability to pay should not influence the amount of the assessment.
See generally 22 Am. Jur. 2d Damages 952 (explaining that
evidence of a defendant's pecuniary resources is generally
inadmissible in cases where only compensatory damages are
recoverable); Vasbinder v. Ambach, 926 F.2d 1333, 1344 (2d Cir.
1991) (applying principle).
To be sure, at the next step relative wealth may have
some practical bearing. When defendants are jointly and
severally liable, the prevailing party may choose to collect the
entire indebtedness from one or more of the liable parties, to
the exclusion of others. See, e.g., McDonald v. Centra, 118 B.R.
903, 914 (D. Md. 1990), aff'd, 946 F.2d 1059 (4th Cir. 1991),
cert. denied, 112 S. Ct. 2325 (1992). But when, as in this case,
liability is contested, much more than the PRPs' relative
affluence must be considered.
With this in mind, the proper way to gauge the adequacy
of settlement amounts to be paid by settling PRPs is to compare
the proportion of total projected costs to be paid by the
settlors with the proportion of liability attributable to them,
and then to factor into the equation any reasonable discounts for
litigation risks, time savings, and the like that may be
justified.
Inspected through that lens, the first consent decree
looks entirely appropriate. The district judge explicitly found
that the generators and transporters collectively were
responsible for fifty percent of the environmental damage. Under
the terms of the negotiated settlement, the payment to be
tendered by the generators and transporters as a group
(approximately $36,000,000) represents more than half of the
highest estimate of aggregate clean-up costs ($70,000,000).
Thus, the settlement is favorable to the government agencies even
before allowances are made for appropriate discounts, such as
litigation risks, the benefit derived from shelving the
counterclaims, and the desirability of expediting the cleanup.4
Accordingly, appellants' accountability challenge lacks force.
C. Fairness.
In a somewhat related vein, appellants protest
vehemently that Judge Woodlock evaded his obligation to make a
finding on substantive fairness by failing to explain the
settlements' allocation of responsibility either within or among
the various classes of defendants. In support, appellants
isolate a passage in Cannons in which we wrote:
Substantive fairness introduces into the equation concepts of corrective justice and accountability: a party should bear the cost of the harm for which it is legally responsible. The logic behind these concepts dictates that settlement terms must be based upon, and roughly correlated with, some acceptable measure of comparative fault, apportioning liability among the settling parties according to rational (if necessarily imprecise) estimates of how much harm each PRP has done. . . . Whatever formula or scheme EPA advances for measuring comparative fault and allocating liability should be upheld so long as the agency supplies a plausible explanation for it, welding some reasonable linkage between the factors it includes in its formula or scheme and the proportionate shares of the settling PRPs.
4For what it may be worth, the settlement compares quite favorably to the universe of CERCLA settlements, inasmuch as such settlements often compensate the public for only a tiny fraction of the overall expense. See, e.g., In re Acushnet River, 712 F.
Supp. 1019, 1031-32 (D. Mass. 1989) (approving settlement by primary owner/operator for $2,000,000 in contrast to projected total clean-up cost of $34,000,000); City of New York v. Exxon
Corp., 697 F. Supp. 677, 693-94 (S.D.N.Y. 1988) (approving
settlement by seven of fifteen defendants for less than $14,000,000 in contrast to projected total clean-up cost of $400,000,000).
Cannons, 899 F.2d at 87 (citations omitted).
Appellants' error is to read Cannons without regard for
its facts. Cases resolve particular controversies, and the
standards they articulate often are framed in a certain way
primarily to rebut an argument raised by a litigant. Thus, in
Cannons, the quoted passage rebuffed a challenge to a particular
method of allocation. It cannot be ripped root and branch from
that context. In a passage conveniently overlooked by
appellants, Cannons makes this very point; the court recognized
that the standards it limned were not to be applied woodenly:
[W]e are quick to concede that [fairness, reasonableness, and fidelity to the statute] are all mutable figures taking on different forms and shapes in different factual settings. Yet, the concepts' amorphous quality is no accident or quirk of fate. We believe that Congress intended, first, that the judiciary take a broad view of proposed settlements, leaving highly technical issues and relatively petty inequities to the discourse between parties; and second, that the district courts treat each case on its own merits, recognizing the wide range of potential problems and possible solutions.
Id. at 85-86.
In the circumstances of this case a case that bears
scant resemblance to Cannons we do not believe that substantive
fairness required a more detailed explanation of either the
allocation or the allocation method. Three considerations pave
the way to this conclusion.
First: There is little need for a court to police the First:
substantive fairness of a settlement as among settling parties of
a particular class. Sophisticated actors know how to protect
their own interests, and they are well equipped to evaluate risks
and rewards. A trial court can, therefore, usually confine its
inquiry to the substantive fairness of the aggregate class
contribution, or, put another way, to the proposed allocation of
responsibility as between settling and non-settling PRPs. Here,
the trial court performed this task in exemplary fashion. It
would have served no useful purpose to go further and focus the
lens of inquiry on the fairness of each class member's
contribution.
Second: It is impossible to explain an allocation of Second:
liability in minute detail when, as now, the historical record is
incomplete. And, though we hold district courts to high
standards of excellence, we do not expect them to do the
impossible. Thus, it is not surprising that most courts
recognizing an obligation to make findings on comparative fault
in the CERCLA context have framed the obligation in such a way as
to afford an exception for cases in which reliable information is
unavailable. See id. at 88 (explaining need for flexibility in
weighing substantive fairness, particularly when the available
information is "ambiguous, incomplete, or inscrutable"); United
States v. Bell Petroleum Serv., 21 Envtl. L. Rep. 20,374,
[1990 U.S. Dist. LEXIS 14066 at *8-*10] (W.D. Tex. 1990)
(rejecting the argument that, in order to deem a settlement fair,
a court must find that a party's settlement corresponds to its
fair share of liability, even when "no method of dividing the
liability among the [d]efendants" exists that would not involve
"pure speculation"); Rohm & Haas, 721 F. Supp. at 689 (stating
that whether a settlement bears a reasonable relation to some
plausible range of estimates of comparative fault is a
determination that must be "based on the record"); see also
United States v. Conservation Chem. Co., 628 F. Supp. 391, 402
(W.D. Mo. 1985) (declaring that a court should spurn a settlement
which "arbitrarily or unreasonably ignores the comparative fault
of the parties, where there is a reasonable basis for allowing
that comparison to be made") (emphasis supplied).
Such an exception is vitally important because a
muddled record is the norm in most CERCLA litigation. See
Cannons, 899 F.2d at 88 (citing authority); see also Lynnette
Boomgaarden & Charles Breer, Surveying the Superfund Settlement
Dilemma, 27 Land & Water L. Rev. 83, 121 (1992) ("In most CERCLA
actions, the government has difficulty accurately proving
contribution amounts. Poor records, faulty memories, and a
desire to escape liability all add to this difficulty."); Barry
S. Neuman, No Way Out? The Plight of the Superfund Nonsettlor,
20 Envtl. L. Rep. 10,295, 10,299 (July 1990) ("In virtually all
CERCLA cases, the recollections of waste haulers and site
owner/operators are likely to be questionable, the documentation
linking some generators to a specific site subject to attack, and
the evidence generally incomplete.").
We conclude that so long as the basis for a sensible
class-wide approximation is at hand an approximation "roughly
correlated with some acceptable measure of comparative fault,"
Cannons, 899 F.2d at 87 (emphasis supplied) difficulties in
achieving precise measurements of comparative fault will not
preclude a trial court from entering a consent decree. On this
understanding, we uphold the district court's division of
responsibility between owner/operators, on one hand, and
generators/transporters, on the other hand. On this record,
splitting the responsibility between those two groups does not
offend our sense of fairness.5 Cf., e.g., 2 Kings 3:16-18
(describing original Solomonic solution).
Third: As we wrote in Cannons, fairness is "mutable . Third:
. . , taking on different forms and shapes in different factual
settings," id. at 85. To that extent, fairness is an elusive
concept. When substantive fairness cannot be measured directly,
a court must devise alternate methods of testing for it.
Here, Judge Woodlock noted the lack of direct evidence
of substantive fairness but ruled that such evidence was not
essential because substantive fairness flowed as a natural
consequence from procedural fairness. Then, after eliciting a
concession from appellants' counsel that ample basis existed to
allocate responsibility between different classes of defendants,
the court proceeded to make a substantive fairness finding of
limited reach, determining that the generators and transporters,
collectively, were responsible for one-half of the overall
5Appellants concentrate their fire on the first consent decree, and do not attack the substantive fairness of the allocation approved vis-a-vis the junior Georges. At any rate, that allocation, too, seems supportable.
damage.
We discern no error. Although appellants take umbrage
at the idea that one type of fairness serves to assure the other,
providing such an assurance is precisely the function of
procedural fairness. Cf., e.g., Sir Henry Maine, Dissertations
on Early Law and Custom 389 (1886) ("Substantive law has . . .
the look of being gradually secreted in the interstices of
procedure."). There exist many cases in which the data is so
fragmentary that a district court cannot be held to the letter of
the Cannons substantive fairness standard. In such cases, a
finding of procedural fairness together with other circumstantial
indicia of fairness, may constitute an acceptable proxy. See
Neuman, supra, at 10,299 (postulating that incomplete records are
so common in CERCLA litigation that, no matter how thorough a
review the court undertakes, the search for substantive fairness
typically collapses into a search for procedural fairness).
This is such a case. By all accounts, the conduct of
the settlement negotiations, under the supervision of Chief Judge
Tauro, was a textbook model so much so that appellants do not
press any objections to procedural fairness. We are thus
reinforced in our conclusion that the lower court's fairness
findings were both permissible and supportable.
D. The Scope of the Consent Decrees.
Appellants' final set of arguments forces us to step
outside the range of Cannons. Appellants claim that the consent
decrees are overbroad both because they addressed claims that
were not pleaded and because they addressed claims that had been
sidetracked by the CMO.
1. The Standard. In its definitive statement 1. The Standard.
concerning the scope of consent decrees, the Supreme Court
explained that a court cannot lend its imprimatur to a settlement
unless:
(1) it "spring[s] from and serve[s] to resolve a dispute within the court's subject matter jurisdiction"; (2) it `come[s] within the general scope of the case made by the pleadings'; and (3) furthers the objectives upon which the complaint was based.
Local No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S.
501, 525-26 (1986); (citations omitted); accord Conservation Law
Found. v. Franklin, 989 F.2d 54, 59 (1st Cir. 1993). We apply
this standard to the consent decrees at issue as a means of
testing appellants' twin objections.
2. Natural Resource Damages. Appellants' complain 2. Natural Resource Damages.
that the decrees resolved potential claims for damages to natural
resources that were never pleaded and, accordingly, were not
properly before the court. Even if we assume for the sake of
argument that these claims would not have surfaced at a trial,
appellants' objection is fruitless.
The objection calls into question only the second of
the Firefighters requirements and that requirement is satisfied
in this instance. Indeed, the natural resource damage claims
discussed in the decrees exemplify the type of related claims
envisioned by the Justices as coming within the authority of an
approving court. They are claims that, though not expressly set
out in the pleadings, fall within their general scope.6
3. Claims Precluded Under the Case Management Order.
Appellants' next complain that the consent decrees disposed of
claims that could not have been litigated under the terms of the
CMO, namely, potential claims by the plaintiffs against third-
party defendants and potential claims anent trans-shipment
issues. Insofar as we can tell, it is a question of first
impression whether a consent decree may resolve claims that the
parties were precluded from litigating under the court's own case
management orders. On reflection, we believe that question must
be answered affirmatively.
CMOs are designed to serve a variety of pragmatic
objectives. These include not only expediting and focusing the
litigation, see Fed. R. Civ. P. 16(a)(1)-(4), but also, as the
current version of the rule recognizes, facilitating settlement,
see Fed. R. Civ. P. 16(a)(5).7 We think it follows that case
management is an area in which the district court has
"considerable discretion." Geremia v. First Nat'l Bank, 653 F.2d
6Appellants' contention to the contrary relies almost exclusively on the opinion in City of New York v. Exxon Corp.,
697 F. Supp. 677 (S.D.N.Y. 1988). But Exxon is easily
distinguished. There, the district court refused to approve a settlement involving a non-party. See id. at 687. The court
reasoned that it had no power to resolve a dispute outside its subject matter jurisdiction. Id. at 687-88. The case at bar
poses very different problems, bereft of jurisdictional overtones.
7We note that, in practice, these two sets of goals often go hand in hand. To hold settling parties to the strictures of a CMO, come what may, would place the two goals in tension with one another.
1, 5 (1st Cir. 1981). Although a CMO will ordinarily "control
the subsequent course of the action," Fed. R. Civ. P. 16(e), it
may be modified by subsequent order at the district court's
pleasure, see Ramirez Pomales v. Becton Dickinson & Co., 839 F.2d
1, 3 (1st Cir. 1988), or, in the case of a final CMO, to prevent
manifest injustice, see Fed. R. Civ. P. 16(e). More
specifically, the trial court has very broad discretion to modify
a preexisting case management order to facilitate settlements, at
least in the absence of unfair prejudice. See generally 6A
Charles A. Wright et al., Federal Practice and Procedure
1525.1, at 253-54 (1990) (discussing district court's authority
to encourage settlements). We see no unfair prejudice to
appellants from the court's wise exercise of its discretion here.
Once we have reached this plateau, the rest flows
naturally. It is evident from the very nature of case management
orders that they are not jurisdictional in effect. Thus, the
first Firefighters requirement is fulfilled. And as we explain
below, the second and third Firefighters requirements also are
met.
That the third-party and trans-shipment claims come
within the general scope of the pleadings and advance the
objectives of the plaintiffs' complaints cannot be gainsaid.
CERCLA cost recovery actions are initiated in the hope of
resolving all issues revolving around a particular Superfund
site, and frequently, in the hope that resolution will take the
form of a global settlement. This is consistent both with the
statutory design and the common good. In the words of the
district court:
It would have been a foolish or odd consent decree that did not incorporate within it all of the potential claims that can and could have arisen out of th[is] litigation. . . . [I]t is altogether proper, indeed, in the larger public interest for [the court] to leave no loose threads.
Moreover, the Supreme Court has made clear that there
is no per se prohibition against consent decrees that exceed the
possible bounds of a decision issued directly by the trial court.
Because a consent decree is animated not only by the parties'
legal claims but also by the parties' consent, a court is "not
necessarily barred from entering a consent decree merely because
the decree provides broader relief than the court could have
awarded after trial." Firefighters, 478 U.S. at 525. Viewed in
this light, we do not think that the scope of the consent decrees
exceeded the bounds of the trial court's discretion.
To recapitulate, then, a CERCLA consent decree may
(and, in many cases, should) sweep more broadly than would the
court's judgment in the event that the litigation culminated in a
full-dress trial. Because this is true, and because the consent
decrees pass Firefighters muster in all respects, we reject
appellants' contention that the decrees are overbroad.
IV. CONCLUSION
We need go no further. Finding, as we do, that
appellants' asseverational array contains more cry than wool, we
hold that the district court acted lawfully in approving the
consent decrees at issue here.
Affirmed.