The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States, et al. v. No. 02-2245
ELECTRONIC CITATION: 2004 FED App. 0157P (6th Cir.) Wayne County, Mich., et al.
File Name: 04a0157p.06
Decided and Filed: April 23, 2004*
UNITED STATES COURT OF APPEALS Before: SILER, MOORE and SUTTON, Circuit Judges.
FOR THE SIXTH CIRCUIT _________________
_________________
COUNSEL
UNITED STATES OF AMERICA ; X
MICHAEL A. COX , Attorney - ARGUED: Kerry L. Morgan, PENTIUK, COUVREUE &
- KOBILJAK, Wyandotte, Michigan, for Appellant. Kathryn
General for the State of E. Kovacs, UNITED STATES DEPARTMENT OF
- No. 02-2245
Michigan, ex rel MICHIGAN - JUSTICE, Washington, D.C., for Appellees. ON BRIEF:
NATURAL RESOURCES > Kerry L. Morgan, PENTIUK, COUVREUE & KOBILJAK,
,
COMMISSION ; DIRECTOR OF Wyandotte, Michigan, for Appellant. Kathryn E. Kovacs,
-
THE MICHIGAN DEPARTMENT UNITED STATES DEPARTMENT OF JUSTICE,
- Washington, D.C., Pamela J. Stevenson, OFFICE OF THE
OF NATURAL RESOURCES, - ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
Plaintiffs-Appellees, -
- _________________
-
v.
- OPINION
- _________________
WAYNE COUNTY, MICHIGAN , -
et al., - SUTTON, Circuit Judge. On May 24, 1994, the United
Defendants, - States and the State of Michigan negotiated a consent decree
- with Wayne County, Michigan and several communities in
- the area that deliver sewage to a Detroit-area wastewater
CITY OF RIVERVIEW, - collection system and wastewater treatment plant. The
Defendant-Appellant. - consent decree resolved a 1987 action under the Clean Water
N Act regarding sewage discharges into the Detroit River, and
Appeal from the United States District Court sought significant improvements to the collection system and
for the Eastern District of Michigan at Detroit. the treatment plant. Under the consent decree, the parties
No. 87-70992—John Feikens, District Judge. agreed that only eight of 24 bypasses—points at which raw
sewage is discharged into the Detroit River during storms that
Argued: March 9, 2004
*
This decision was originally issued as an “unpublished decision”
filed on April 23 , 200 4. On M ay 20, 200 4, the court designated the
opinion as one recommend ed for full-text publication.
1
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Wayne County, Mich., et al. Wayne County, Mich., et al.
overload the waterway—would be necessary to handle acts. The complaint was amended in 1988 to add a violation
emergency rainfall situations on the waterway and that all of the Michigan Drain Code as well as claims against several
other bypasses would be sealed by October 1, 2002. communities and drainage districts delivering sewage to the
system (the “downriver communities”), including the City of
In April 2001, one of the parties to the consent decree, the Riverview. The amended complaint alleged that Wayne
City of Riverview, filed a motion to amend the decree to County and the downriver communities violated the Clean
permit the City to keep its bypass open permanently. The Water Act by exceeding the effluent limitations for discharges
City claimed that severe storms in 1998 and 2000 proved that into the Detroit River and had failed to construct necessary
its bypass needed to remain open because the storms caused additional treatment facilities required by the discharge
extensive basement flooding in the homes of its residents. permit. The amended complaint also alleged that the
The district court denied this motion, and we affirm. downriver communities “caused or contributed” to Wayne
County’s violations. First Am. Compl. at 11. Plaintiffs asked
I. that the defendants be enjoined from continuing to violate the
Clean Water Act, various Michigan water laws and the
Wayne County owns the Wyandotte Wastewater Treatment permit, and be ordered to develop a plan for improving the
Plant, which is located on the Detroit River, and the system to avoid future impermissible discharges into the
Downriver Wastewater Collection System, which carries Detroit River.
sewage from communities in the area to the treatment plant.
Wayne County lets local communities purchase capacity on On May 24, 1994, Wayne County and the downriver
the collection system, allowing each community to discharge communities entered into a consent decree designed to bring
a specified amount of sewage into the pipes leading to the all defendants into compliance with federal and state law.
treatment plant. Communities bear responsibility for The consent decree required Wayne County and the
regulating their own flow levels so as not to exceed their downriver communities to expand the wastewater treatment
purchased capacities. In normal weather conditions, that task facility and to improve the regional wastewater transport
raises few challenges. When extreme rainfall occurs, system. The defendants also agreed to reduce their use of the
however, effective operation of the wastewater collection system’s bypasses and to seal all but eight of them by
system requires a balance between controlling flows to the October 1, 2002. The bypass operated by the City of
treatment plant and sanitary sewer overflow on the one hand Riverview was not among the eight bypasses that were
and bypass discharges to the Detroit River on the other. allowed to remain open.
When this balance is compromised, one of two things
happens: Too much sewage is discharged into the Detroit On April 13, 2001, roughly a year and a half before the
River or too much basement flooding occurs. remaining bypasses were to be sealed, the City of Riverview
filed a motion to modify the consent decree so that its bypass
In 1987, the United States and the State of Michigan filed could be left open permanently. Riverview claims that the
an action against Wayne County, alleging that it had violated motion became necessary in the aftermath of three related
the federal Clean Water Act, the Michigan Water Resources events: (1) unanticipated severe storms, one in 1998 and two
Commission Act and the National Pollutant Discharge in 2000, which produced extreme rain; (2) a lightning strike
Elimination System permit that it had been issued under those that disabled the power grid supplying voltage to the system’s
No. 02-2245 United States, et al. v. 5 6 United States, et al. v. No. 02-2245
Wayne County, Mich., et al. Wayne County, Mich., et al.
pump stations; and (3) a raft of lawsuits arising from II.
residential basement flooding caused by the two storms. The
district court denied the motion without prejudice, reasoning We review a district court’s denial of a motion to modify a
that it was premature because system improvements consent decree for abuse of discretion. Lorain NAACP v.
contemplated by the consent decree had not yet been Lorain Bd. of Educ., 979 F.2d 1141, 1147–48 (6th Cir. 1992).
completed. “A district court abuses its discretion when it relies on clearly
erroneous findings of fact, or when it improperly applies the
On June 5, 2002, Wayne County and the downriver law or uses an erroneous legal standard.” Id. at 1148
communities filed a motion to modify the consent decree by (quotation and citation omitted).
extending the deadline for sealing the bypasses one year (until
October 1, 2003). They hoped the extension would allow for A.
adequate time to collect additional data to determine “the
future importance of certain bypasses.” Wayne County Mot. The City of Riverview first raises a procedural challenge to
to Amend at 3. On July 1, 2002, the City of Riverview the district court’s ruling. In the City’s view, the court abused
renewed its own motion to amend the consent decree to allow its discretion by failing to conduct a formal hearing regarding
it to keep its bypass open permanently. The United States and the motion. We disagree.
Michigan opposed both motions. Consistent with the consent
decree, they noted, the defendants had completed a study of The modification of a consent decree by a court without the
the system capacity needed to handle various rainfall events, consent of all parties to the agreement is indeed a signal event
had proposed a system that could handle those events and that requires a material change in circumstances that only a
were still in the process of constructing the new system. On formal hearing and appropriate findings of fact can
top of this, the governmental plaintiffs argued, the demonstrate. Traditionally,
defendants’ study confirmed that the eight bypasses
remaining open under the consent decree would adequately courts have []considered the modification of a consent
handle extreme rainfalls. decree to be serious, leading to “perhaps irreparable”
consequences. . . . As a contract, a decree . . . reflects a
On August 30, 2002, the district court conducted a hearing compromise or agreement negotiated between parties
on the motion filed by Wayne County and the downriver who each have a purpose. Judicial approval of a
communities. At that hearing, the City of Riverview’s settlement agreement places the power and prestige of
counsel also addressed the court on the merits of the City’s the court behind the compromise struck by the parties.
motion, which was scheduled for a hearing on September 24, The standard for justifying the modification of a decree
2002. The district court officially denied the motion of is a strict one and a consent decree is, after all, a
Wayne County and the downriver communities on judgment entitled to a presumption of finality.
September 20, 2002. On September 24, 2002, it convened a
hearing on the City of Riverview’s motion, and denied the United States v. Michigan, 940 F.2d 143, 150 (6th Cir. 1991)
motion that day. The City of Riverview, but not the other (internal citations and quotations omitted). Recognizing the
defendants, appeal the district court’s refusal to modify the significance of modifying the terms of a consent decree over
consent decree. the objection of one of the parties, this Court has required
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Wayne County, Mich., et al. Wayne County, Mich., et al.
district courts to hold “a complete hearing” and to make The court ultimately rejected Wayne County’s motion.
appropriate findings of fact before making such And in September, the City claims, the court abused its
modifications. Vanguards of Cleveland v. City of Cleveland, discretion by merely “rehash[ing] the August 30, 2002
23 F.3d 1013, 1017 (6th Cir. 1994); see also Gonzales v. hearing, and conclud[ing] without foundation that [it] had
Galvin, 151 F.3d 526, 535 (6th Cir. 1998) (noting that “a already ‘denied a series of motions, one of which was’
‘complete hearing’ of an issue does not necessarily require a Riverview’s.” Appellant’s Br. at 21–22 (quoting Trans. of
full-blown evidentiary hearing”). 9/24/02 Mot. Hr’g at 8).
That a formal hearing should be held before a court alters In registering this procedural objection to the court’s ruling,
a consent decree, however, does not mean that a court must however, the City fails to offer a tenable explanation why it
hold a formal hearing before it refuses to modify a consent should have received a formal hearing in September or for
decree. When a motion does not raise a serious challenge to that matter what it would have done differently had such a
the consent decree and merely appears to be “a post-judgment hearing occurred. The City’s counsel attended the August
attempt by a party to escape from obligations it had hearing, was given an opportunity to participate in that
voluntarily assumed,” Del. Valley Citizens’ Council for Clean hearing and acknowledged that the two motions were related,
Air v. Pennsylvania, 674 F.2d 976, 981 (3d Cir. 1982), it may which in fact they were. At the September 24th hearing,
well be appropriate for a trial court to reject the motion moreover, counsel for the City of Riverview acknowledged
without holding a formal hearing. that (1) “this matter has been briefed, and the Court is well
familiar with the bypass situation” and (2) “there have been
In this instance, the district court scheduled two pertinent . . . maybe a half-dozen or so pleadings and supplemental
hearings—one for August 30, 2002 on the motion filed by pleadings on this subject. We would submit that to the Court
Wayne County and the downriver communities to keep the for its consideration, and the basis thereof is stated well in our
bypasses open for another year, and one for September 24, pleadings.” Trans. of 9/24/02 Mot. Hr’g at 5.
2002 on the motion by the City of Riverview to keep its
bypass open indefinitely. Counsel for the City attended the To the extent the City means to argue that it not only
August hearing as an observer. At one point during that should have been given a more formal hearing but also should
proceeding, on “his own initiative [,] . . . [he] approached the have been given an opportunity to present evidence as well,
podium and asked . . . for permission to address” the court. that too is wrong. “Evidentiary hearings are not necessary,”
Appellant’s Br. at 20. He explained that he was concerned we have held, “where the parties’ briefs clearly set forth the
that the district court could rule against the current motion, relevant facts and arguments of a case such that a hearing
then rely on that ruling as precedent for rejecting the City’s would not add anything to the briefs, and where the court has
motion in September. The district court did not disagree and sufficient evidence before it to make detailed factual
explained that “whatever is done today would affect that findings.” Gonzales, 151 F.3d at 535. And that is
[September] motion.” Trans. of 8/30/02 Mot. Hr’g at 21. As particularly true in this setting—where the City’s motion was
a result, counsel for the City made the most of his filed before the October 1, 2002 deadline and where the
“opportunity” to “make a few statements to the Court” about motion concerned events (severe storms in 1998 and 2000)
the City’s independent motion. Id. that took place before Wayne County and the downriver
communities (including the City of Riverview) had completed
No. 02-2245 United States, et al. v. 9 10 United States, et al. v. No. 02-2245
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their modifications to the collection system and treatment demonstrates a significant change in factual circumstances,
plants. the court must consider “whether the proposed modification
is tailored to resolve the problems created by the change.” Id.
Nothing in the record, moreover, indicates that the City at 391. By contrast, when a party seeks to modify a consent
sought to proffer any evidence at the September hearing. decree based “upon events that actually were anticipated at
Aside from what the district court was told in the August the time it entered into a decree,” the modification should be
hearing (including statements made by the City’s counsel) denied. Id. at 385; see Vanguards of Cleveland, 23 F.3d at
and what was contained in the pleadings and briefs submitted 1018.
with the City’s motion, the City has offered no indication that
it formally or informally sought to present more evidence at In seeking a modification, the City initially invokes
the September hearing. Under these circumstances, the changed factual circumstances. While weather and collection
district court acted well within its discretion in choosing not system projections in 1994 assured the City that sealing its
to hold a more formal hearing, including an evidentiary bypass in 2002 would be feasible, the City claims that it could
hearing, before denying the City’s motion to keep open its not account for factual circumstances arising after the parties
bypass permanently. signed the consent decree. Torrential downpours in 1998 and
2000, the City explains, and a lightning strike on the
B. wastewater collection system’s power grid (rendering its
pumps inoperable) were not anticipated and created
The City next challenges the merits of the district court’s widespread residential basement flooding that eventually led
decision. Relying on material changes in fact (the to “34 class action lawsuits and over 10,000 plaintiffs.”
unanticipated storms in 1998 and 2000) and in Michigan law Appellant’s Br. at 24.
that occurred after the parties entered into the consent decree
in 1994, it argues that the consent decree should be modified As the City acknowledges, however, “basement flooding
because compliance with the decree is no longer possible for was discussed” by the parties when they negotiated the
the City and is no longer in the public interest. We disagree. consent decree and determined the number of bypasses that
could remain open. Id. Prior severe storms—including an
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 historic July 11, 1979 storm that produced three inches of rain
(1992), sets forth the standards for modifying a consent in two hours—were a not-too-distant memory when the
decree. When obligations under a consent decree “become parties negotiated the consent decree and were well known by
impermissible under federal law” or “when the statutory or the participants to the negotiations. More significantly, the
decisional law has changed to make legal what the decree was cause and effect between extreme weather and sewage
designed to prevent,” a district court may modify the decree discharges into the Detroit River was a significant reason, if
and may do so over the objection of one of the parties. Id. at not the primary reason, for the filing of the lawsuit by the
388; see also Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. United States and the State of Michigan in the first instance.
1994). However, a judicial decision that clarifies the law When severe rain overloads a collection system and puts a
does not, of itself, support modification, unless “the parties local community to the choice of discharging excess water
had based their agreement on a misunderstanding of the (and sewage) into a river or into its residents’ basements, one
governing law.” Rufo, 502 U.S. at 390. If the moving party need not be an expert in the environmental problem of
No. 02-2245 United States, et al. v. 11 12 United States, et al. v. No. 02-2245
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externalities to predict the choice that will often be made in then, the law has changed. In 2001, the Michigan legislature
the absence of regulation by the State or the National amended the statutes regarding governmental tort liability for
Government. See Solid Waste Agency v. United States Army sewer-system overflow, making it more difficult to hold a
Corps of Eng’rs, 531 U.S. 159, 195 (2001) (noting that many municipality liable for basement flooding and hampering
environmental problems are created by actions “in which the homeowners’ ability to obtain recoveries from their
benefits . . . are disproportionately local, while many of the municipality after basement flooding. See, e.g., Mich. Comp.
costs . . . are widely dispersed. . . . [and that] in such Laws §§ 691.1415 (2001) et seq. In 2002, the Michigan
situations, described by economists as involving Supreme Court decided Pohutski, which also makes it harder
‘externalities,’ federal regulation is both appropriate and for residents to hold municipalities liable for residential
necessary”). To the ends of ensuring that this local choice basement flooding and which gives these limitations on
complied with the Clear Water Act and Michigan law, the municipal liability a prospective application. 641 N.W.2d at
United States and Michigan filed this lawsuit. Severe 233–34. In the City’s view, these changes materially altered
weather, plainly, was one of the items the parties the legal circumstances surrounding the consent decree
contemplated in negotiating the retention capacity of the new because in 1994 the parties “did not agree to willy-nilly
system’s pipes and the treatment plant, as well as the location sacrifice their residents’ property if their cause of action
and number of bypasses on the system permitted to remain disappeared.” Appellant’s Br. at 26.
open. The City in the end seeks to modify the consent decree
on the basis of “events that actually were anticipated” when This argument has an assortment of flaws. First, the
it signed the consent decree, which is classically a reason for changes in Michigan law purport to help the City (or at least
denying a modification. Rufo, 502 U.S. at 385. its treasury) rather than hurt it. The whole point of the
legislation after all is to limit municipal liability for basement
Finally, when the basement flooding that sparked the City’s flooding caused by torrential rain. The new case law is to the
motion occurred in 1998 and 2000, system improvements same effect. Second, to the extent the City of Riverview does
under the consent decree were not yet complete. In other not support these limitations on liability, it of course need not
words, this modification request turns on a problem that not enforce them. Nothing in the new legislation bars a city from
only had been anticipated but that the new system had not yet waiving these limitations on its liability. Third, these legal
been given a chance to correct. In denying a request to developments do not permit the modification of a consent
modify a consent decree under these circumstances, the decree. These changes in law, for example, do not “make
district court did not abuse its discretion. legal what the decree was designed to prevent” and do not
make obligations under the consent decree “impermissible
In addition to relying on changed factual circumstances, the under federal law.” Rufo, 502 U.S. at 388. Likewise, neither
City claims that changes in Michigan statutory and decisional the statutory amendments nor the Michigan Supreme Court
law after 1994 support its motion. In 1994, municipalities opinion shows that the parties based the consent decree on a
could be held liable for basement flooding under the trespass- “misunderstanding of the governing law.” Id. at 390. In
nuisance exception to governmental immunity. See Pohutski accordance with the Clean Water Act and Michigan law, the
v. City of Allen Park, 641 N.W.2d 219, 227–28 (Mich. 2002) consent decree required the City of Riverview to seal its
(noting two 1998 cases in which defendant communities were bypass so untreated sewage would not be discharged into the
held liable under the trespass-nuisance exception). Since Detroit River. Michigan’s new statutes and case law
No. 02-2245 United States, et al. v. 13 14 United States, et al. v. No. 02-2245
Wayne County, Mich., et al. Wayne County, Mich., et al.
concerning reduced municipal liability do not legalize those more extreme rainstorm (six inches in 24 hours) occurred,
discharges, do not make closing the Riverview bypass only four of the eight bypasses that remained open after
impermissible and do not establish that the consent decree October 1, 2002 would have to be used. These findings were
was based on a legal misunderstanding of any kind. The City, incorporated into the Emergency Operations Plan adopted by
in short, has not shown that the district court abused its the district court. Contrary to the City’s suggestion, the
discretion in rejecting these changes in law as a basis for Emergency Operations Plan did contemplate surcharges
modifying the consent decree under Rufo. during severe rainfalls, and found that only a few of the
bypasses needed to remain unsealed to alleviate overflow. At
C. no point did the Plan conclude that more than eight bypasses
would be needed to account for extreme rainfall.
The City, lastly, argues that the district court ignored
findings from studies defendants had conducted and What is more, the system improvements required by the
incorporated into the Emergency Operations Plan, which the consent decree had not been completed when the basement
district court then adopted. “For rainfall events approaching flooding that sparked this motion occurred in 1998 and 2000.
and above the 4.42 inch design storm,” the Plan says, During those storms, in other words, the City of Riverview’s
“surcharging within local systems may occur as a result of bypass was open and apparently did not help prevent the
local capacity limitations, regardless of whether [] flow levels flooding. Now that the system is complete, the
are maintained at acceptable elevations.” Em. Operations comprehensive study predicts that the new system will handle
Plan at 17. The Plan also acknowledges that “[e]mergency extreme storms like those in 1998 and 2000, a conclusion that
conditions may be extremely rare, but without the capability the City has nowhere contradicted. In fact, the City has not
to bypass significant surcharging and flooding could result in offered any proof that (1) the completed system is inadequate
the lower reaches of the system should an emergency occur.” and actually will result in future residential basement
Id. at 19. flooding, (2) its compliance with the consent decree either
caused past residential basement flooding or will cause
As the City sees it, the district court failed to acknowledge residential basement flooding in the future or (3) a decision
the possibility that extreme weather could cause system relieving it from its obligations under the consent decree will
surcharging, then compounded the error by prohibiting the prevent flooding in the future. For these reasons, the City has
City from utilizing its bypass as a way to avoid the possible also failed to satisfy its duty under Rufo of showing that its
residential basement flooding that could result. Once again, recommendation to keep its bypass open is tailored to
we cannot agree. addressing the very problem upon which this motion is
premised. See Rufo, 502 U.S. at 391. No abuse of discretion
The consent decree obligated the defendants to design a occurred.
system that could handle extreme rainfall. The defendants’
own hydraulic modeling study predicted that during a III.
centennial rainstorm—4.42 inches of rain in 24 hours that is
likely to occur just once every 100 years—the wastewater For the foregoing reasons, we affirm.
collection system could handle the resulting flow without
using any bypasses. The study also predicted that even if a