City of Houston Case Shows Why Settlements with the Government Take so Long

2020 Environmental Real Estate IssuesThe United States and the State of Texas sued the City of Houston, alleging numerous Clean Water Act (“CWA”) violations due to discharges from the City’s wastewater treatment plants. (See these prior AlertsUnited States and City of Houston Say Settlement Is Imminent in CWA Enforcement CaseEnvironmental Group Serves City of Houston with Intent to Sue Over Sewage DischargesEnvironmental Group Allowed to Intervene in CWA Enforcement Case Against City of Houston)

In March, lawyers for the parties told the Court they had reached agreement on a proposed settlement the lawyers would recommend to their respective governmental clients.  In April, the lawyers informed the Court they had substantially finalized the settlement documents and were proceeding to obtain approvals for the settlement.  In May, the lawyers told the Court they were continuing the approval process.

Multiple Approvals within the Federal and State Governments
In status reports to the Court, the lawyers have acknowledged the multiple approvals necessary to settle this CWA case.  For the federal government, approval must be given by:

  • The Assistant Attorney General for the Environment and Natural Resources Division of the United States Department of Justice (“DOJ”);
  • The DOJ Principal Deputy Associate Attorney General;
  • The Assistant Administrator of the Office of Enforcement and Compliance Assurance of the U.S. Environmental Protection Agency (“EPA”); and
  • The EPA Region 6 Director of the Compliance Assurance and Enforcement Division.

For the State of Texas, approval must be given by:

  • The Environmental Protection Division Chief, as well as members of the executive administration for the Office of the Attorney General of Texas;
  • The Deputy Attorney General for Civil Litigation; and
  • The First Assistant Attorney General.

City Approval before Final State and Federal Approval
However, these approvals are not final.  Only after preliminary approvals from these federal and state officials will the City initiate its approval process, which involves presentation of the settlement to the City Council in a public forum, followed by a vote at a City Council Agenda meeting.

Filing and Public Comment
After the City approves the settlement, it will go back to federal and state officials for final approval.  Upon that approval, the lawyers will file a proposed Consent Decree with the Court, which will be subject to a public comment process, with a comment period not less than thirty days from formal publication.  Any party can withdraw approval based on comments.  The Court can approve the settlement only if all parties, after receiving any comments, request entry of the Consent Decree.