Regulatory Developments

Pruitt Looks to Reform ‘Sue and Settle’

A pledge to end EPA’s past approach to reaching out-of-court settlements with environmental groups that had filed lawsuits against the Agency was one of the lesser-known but no less firmly held commitments Scott Pruitt carried with him when he became administrator. Pruitt has now issued two documents that would seem to set the Agency on a path toward meeting that pledge.

One document is a background discussion of the practice, commonly called sue and settle, and why the way it has been practiced by the EPA violates the constitutional separation of powers, among its other objectionable aspects. The second is a new set of “procedures” the Agency will follow in the consent decree and settlement agreement process involving lawsuits against the EPA. Neither the background discussion nor the procedures purport to terminate sue and settle—an approach that would place the Agency in the untenable position of litigating every complaint it receives. Rather, the documents and particularly the procedures change the way the Agency engages in settlements.

Result of Collusion

Historically, sue and settle has been used by the EPA to resolve complaints typically lodged by environmental groups against the Agency for failure to meet nondiscretionary obligations. The majority of settlements address missed deadlines for taking regulatory action. Settlements must be approved by the courts; failure to abide by them can result in being held in contempt of the court.

Pruitt, as well as industry groups and federal lawmakers, have asserted that these settlements appear to be the result of collusion between the EPA and the outside groups. Such settlements, they continue, are struck behind closed doors and deprive the public of the opportunity to comment on the action, leave the states out of decisions that affect them, and improperly provide the courts with powers reserved for the president and Congress.

“Indeed, sue and settle has been adopted to resolve lawsuits through consent decrees in a way that bound the Agency to judicially enforceable actions and timelines that curtailed careful consideration,” states Pruitt. “This violates due process, the rule of law, and cooperative federalism.”

Public Participation

The absence of public participation seems to top Pruitt’s complaints against sue and settle. For example, he notes that the Agency and the party that filed the legal challenge agree in principle on the terms of a consent decree or settlement before the public has the opportunity to review the terms of the agreement, the Agency typically agrees to an expedited rulemaking process that can inhibit meaningful public participation, and the Agency empowers special interests at the expense of the public and parties that could have used their powers of persuasion to convince the Agency to take an alternative action that could better serve the American people.

Congress Deprived

Among his other specific complaints against sue and settle as it has occurred in past administrations, Pruitt states:

  • The sue-and-settle strategy allows executive branch officials to avoid political accountability by voluntarily yielding their discretionary authority to the courts, thereby insulating officials from criticisms of unpopular actions.
  • It deprives Congress of its ability to influence Agency policy through oversight and the power of the purse.
  • It deprives states of the opportunity to voice their concerns in negotiations to ensure that agreed-upon deadlines are reasonable.

Public and State Notifications

The directive states that the EPA will no longer “resolve litigation through backroom deals” and consists of 10 procedures, including:

  • Public publication of notices that the Agency has received notices of intent to sue.
  • Notification to states of a complaint that affects those states.
  • Refusal to enter into a consent agreement with terms the court would have lacked authority to order if the parties had not resolved the litigation or that converts an otherwise discretionary duty of the Agency into a mandatory duty to issue, revise, or amend regulations.
  • General opposition both to paying attorneys’ fees for plaintiffs or petitioners in consent agreements and to informally resolving the question of attorneys’ fees and costs.
  • Publication for public review and comment a draft of any settlement to resolve claims against the Agency.

Pruitt adds that he reserves the right to deviate from the procedures. “In no circumstances, however, will I permit the Agency to violate its statutory authority or to upset the constitutional separation of powers,” Pruitt says.

The background memo and set of procedures are available here.

Print

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.