Pruitt ends ‘sue and settle’ practices
October 18, 2017
In fulfilling his promise to end the practice of regulation through litigation that has harmed the American public, EPA Administrator Scott Pruitt issued an agency-wide directive Oct. 16 designed to end "sue and settle" practices within the Agency.
"Sue and settle," referring to the practice of special interest groups filing suit against federal agencies with the two parties coming to an agreement outside of the normal rulemaking process. These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.
"It is definitely a step in the right direction," said Ethan Lane, Public Lands Council executive director. "We are hoping other (federal) agencies will follow suit."
For example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups. These cases resulted in settlement agreements and EPA publishing more than 100 new regulations — including the recent Clean Power Plan.
“The days of regulation through litigation are over. We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle.” Scott Pruitt, EPA administrator
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"The days of regulation through litigation are over," Pruitt said in a press release. "We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney's fees to these groups with which we swiftly settle."
Over the years, outside the regulatory process, special interest groups have used lawsuits that seek to force federal agencies — especially EPA — to issue regulations that advance their interests and priorities, on their specified timeframe. EPA gets sued by an outside party that is asking the court to compel the agency to take certain steps, either through change in a statutory duty or enforcing timelines set by the law, and then EPA will acquiesce through a consent decree or settlement agreement, affecting the agency's obligations under the statute.
More specifically, EPA either commits to taking an action that is not a mandatory requirement under its governing statutes or agrees to a specific, unreasonable timeline to act. Oftentimes, these agreements are reached with little to no public input or transparency. That is regulation through litigation, and it is inconsistent with the authority that Congress has granted and the responsibility to operate in an open and fair manner.
"Sue and settle" cases establish agency obligations without participation by states and/or the regulated community; foreclose meaningful public participation in rulemaking; effectively force the Agency to reach certain regulatory outcomes; and, cost the American taxpayer millions of dollars.
With the directive, Administrator Pruitt is ensuring the Agency increase transparency, improve public engagement, and provide accountability to the American public when considering a settlement agreement or consent decree by:
1. Publishing any notices of intent to sue the Agency within 15 days of receiving the notice;
2. Publishing any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court within 15 days of receipt;
3. Reaching out to and including any states and/or regulated entities affected by potential settlements or consent decrees;
4. Publishing a list of consent decrees and settlement agreements that govern Agency actions within 30 days, along with any attorney fees paid, and update it within 15 days of any new consent decree or settlement agreement;
5. Expressly forbidding the practice of entering into any consent decrees that exceed the authority of the courts;
6. Excluding attorney's fees and litigation costs when settling with those suing the Agency;
7. Providing sufficient time to issue or modify proposed and final rules, take and consider public comment; and
8. Publishing any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.
In August 2017, the U.S. Chamber of Commerce received a Freedom of Information Act request response from the Department of Justice's Environmental and Natural Resources Division with a database listing all Clean Air Act, Clean Water Act, and Endangered Species Act settlements between Jan. 20, 2009 and Jan. 19, 2017. The database of settlements, is divided in three sections: (1) Environmental Defense, (2) Environmental Enforcement, (3) Wildlife. Additionally, in October 2017, the Chamber received a FOIA request response from the EPA including Clean Air Act and Clean Water Act settlement agreements and consent decrees from between 2015 and 2016.
Taxpayers, including those impacted by the lawsuits, often end up footing the bill for the legal fees. According to a 2011 GAO report, this amounted to millions of dollars awarded to environmental organizations for EPA litigations between 1995 and 2010. Three "Big Green" groups received 41 percent of this payback: Earth Justice, $4,655,425 (30%); the Sierra Club, $966,687; and the Natural Resources Defense Council, $252,004. Most of this was paid to environmental attorneys in connection to lawsuits filed under the Clean Air Act, followed next by the Clean Water Act.
On the books right now, there is a notice of intent to sue, from the Wild Fish Conservancy associated with the Washington State's revised sediment management plan, the Sierra Club associated with Delaware's Brunner Island, the Center for biological Diversity and a number of other groups on the Promulgate Emission Guidelines for methane and emissions, and the Northwest Environmental Advocates involving Washington State's Deschutes River.
And according to reports, the Department of Justice paid over $43 million defending EPA in court between 1998 and 2010. This didn't include money spent by EPA for their legal costs in connection with the suits, since EPA doesn't keep track of their attorney's time on a case-by-case basis.
In 2016, the U.S. Chamber of Commerce conducted a study, The Growing Burden of Unfunded EPA Mandates on the States, finding that the relationship between the EPA and the states has devolved into a system where states are forced to implement more and more federal environmental programs with progressively less money from federal sources. "If EPA continues on this path, it could force a collapse of co-operative federalism which would be a disaster for the administration of environmental law," the report states.
The regulations created involve power plants, refineries, mining operations, cement plants, chemical manufacturers, farming, ranching and more. One of the most successful Sue and Settle strategies the study cites "… has been on an issue few in Washington or around the nation are paying attention to: regional haze requirements under the Clean Air Act."
The Clean Air Act's flaws is no secret in midwestern states, and the study looks at the problems in a few of them. Arizona is facing increased water costs, to the tune of $90.2 million per year. In Montana the Clean Air Act controls are almost 250 percent more than what the Act the cost will be. In North Dakota, the plan would cost the state $13 million per year. In Wyoming, implementation of the plan would cost the state $96 million per year.
In an era, where both sides of the political arena want more transparency, it would seem that Pruitt's open-door plan would be welcome.
"I would love to see what their (activists) objection is to this kind of transparency," Lane questioned.
One group that is known for its "sue and settle" actions, the Sierra Club, is nothing short of outraged by Pruitt's move.
Pat Gallagher, director of the Sierra Club's Environmental Law Program, wrote, "This week, Scott Pruitt and his polluter cronies are aggressively perpetrating the lie they call "sue and settle" as a way of refusing to enforce our nation's critical environmental laws."
Blaming missed deadlines for the primary reason "sue and settle" cases happen, Gallagher wrote, "If Pruitt thinks that by frivolously litigating deadline cases he will deter the Sierra Club or other citizen groups from holding him accountable in court, he should think again: We will not be deterred."
Groups like the Sierra Club have been called out for their close ties to the EPA.
On Jan. 28, 2013, the American Tradition Institute filed a suit in Washington, D.C., to end the EPA's eight-month battle of two FOIA requests, claiming the Sierra Club, along with the American Lung Association, had "uncomfortably close ties at great taxpayer expense." According to reports, both of these organizations lobby for stringent regulatory legislation the EPA wants, while at the same time, receiving agency funding.
For a full list of EPA's Notices of Intent to Sue, visit http://www.epa.gov/ogc/noi.html.
The full directive and memo can be read at https://www.epa.gov/newsroom/directive-promoting-transparency-and-public-participation-consent-decrees-and-settlement. F