United States v. Swinerton Builders
- Edward Chen
- 3:24-cv-00274
- U.S. District Court · Northern District of California
- 11
In United States v. Swinerton Builders, Judge Chen approved a consent decree requiring penalties and environmental mitigation for alleged stormwater violations.
Swinerton Builders must make the decree’s civil-penalty payments, fund or purchase the required mitigation measures, submit compliance reports, and face stipulated penalties for noncompliance. The United States, specified state environmental agencies, and affected watersheds are also addressed by the decree.
What happened
In United States of America, et al. v. Swinerton Builders, the United States sought approval of a negotiated consent decree addressing alleged Clean Water Act and state-law violations involving construction stormwater discharges at four solar-energy facilities. Swinerton did not oppose the motion, although it generally disputed liability.
The decree requires Swinerton to pay $2.3 million in civil penalties, commit $600,000 to an Idaho mitigation project, and purchase 14,020 Alabama stream credits. It also imposes reporting duties, compliance requirements, and additional daily penalties for violations.
Judge Edward M. Chen found the decree fundamentally fair, adequate, reasonable, and consistent with applicable law, despite concern about whether the Idaho mitigation funding would fully address the alleged harm. He granted the motion to enter the consent decree.
The detailed version
- United States v. Swinerton Builders · No. 3:24-cv-00274
- Edward Chen
- July 12, 2024
Background
The United States alleged that Swinerton Builders violated the Clean Water Act and related Alabama and Illinois laws during construction of four solar-energy facilities in Idaho, Alabama, and Illinois. The allegations included failing to obtain a required stormwater permit in Idaho, unauthorized sediment-laden stormwater discharges in Idaho and Alabama, and violations of a state-issued permit in Alabama. The complaint also alleged that discharges from the Idaho and Alabama sites harmed receiving waters.
The United States negotiated a proposed consent decree with Swinerton and asked the court to enter it. The decree was published for a 30-day public-comment period, and the opinion states that no public comments were submitted. Swinerton did not oppose entry of the decree, but it generally disputed liability. The court requested supplemental briefing about the basis for the proposed mitigation measures.
Consent Decree Terms
The decree requires Swinerton to pay a total civil penalty of $2.3 million, with interest accruing from August 23, 2023. The payment allocations are $1,614,600 to the Department of Justice, $540,500 to the Alabama Department of Environmental Management, and $144,900 to the Illinois Environmental Protection Agency. Payment is due within 30 days after the decree’s effective date.
For Idaho, Swinerton must commit $600,000 to mitigation funds for sedimentation in the American Falls site watershed. The funds may support Phase One of the Oxbow Project or the Centennial Park Project, both described as environmental restoration projects. Swinerton must propose alternative projects for leftover funds and comply with reporting and notice requirements.
For Alabama, Swinerton must purchase 14,020 stream credits from an approved mitigation bank. While the motion was pending, Swinerton had already paid $1,184,690 to purchase those credits. The court stated that federal environmental experts estimated that 30,535 credits would be needed to fully offset the alleged harm, but the parties settled on 14,020 credits because Swinerton disputed liability for the stream damage.
The decree also requires semiannual compliance reports during the first two years and annual reports afterward. It provides for stipulated daily penalties for late payments, late or missing mitigation measures and documents, reporting violations, and other noncompliance. It includes procedures for force-majeure claims, dispute resolution, record retention, enforcement, modification, public participation, and termination. The court retains jurisdiction until the decree terminates.
Legal Standard and Analysis
A court may approve a consent decree when it is fundamentally fair, adequate, and reasonable and conforms to applicable law. The court examined procedural fairness, including the negotiation process, and substantive fairness, meaning whether the settlement reasonably correlated liability and the alleged harm. The court also considered environmental effectiveness, compensation for remedial measures, the parties’ litigation positions, alternatives to settlement, and the public interest.
The court found that the Idaho and Alabama mitigation measures would fund environmental restoration in areas allegedly harmed by Swinerton’s discharges. It expressed particular concern that the $600,000 Idaho mitigation fund might take nearly 100 years to address the estimated 945 tons of excess sediment entering the American Falls Reservoir watershed if used for a project removing only ten tons per year. The court nevertheless found the decree reasonable under the deferential standard governing review of negotiated settlements.
The court also found the $2.3 million civil penalty reasonable in light of comparable construction-stormwater settlements, the estimated $421,522 in economic benefits Swinerton allegedly received from its violations, the seriousness of the alleged violations, and repeated violations after regulatory warnings. The court concluded that the decree served the public interest by requiring substantial payments to federal and state environmental agencies and funding restoration projects in affected areas.
Disposition
The court granted the motion to enter the Consent Decree. The opinion states that entry of the decree constitutes a final judgment and that the court retains jurisdiction until the decree terminates.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.