Regulatory Developments

Pruitt’s Sue-and-Settle Directive … Where Is It?

Interest is growing in a “directive” EPA Administrator Scott Pruitt may have issued regarding a new Agency position to the so-called sue-and-settle approach to federal environmental rulemaking. In sue and settle, which gained notoriety with the Obama EPA, the Agency responds to a lawsuit demanding new environmental protections by entering into a consent decree in which it avoid litigation and commits to writing a proposal and final rule that satisfies the plaintiffs rather than defend itself in court.

Sue-and-Settle “Days Are Over”

Pruitt has made his disdain for sue-and-settle well known. In a March 29, 2017, interview, Pruitt stated: “One of the things we’ve done internally is send a memo out to our regions and also to headquarters to say that the days of sue and settle, the days of consent decrees governing this agency where the EPA gets sued by an NGO [nongovernmental organization], a third party, and that third party sets the agenda, sets the timelines on how we do rulemaking, and bypassing rulemaking entirely have ended. And we’ve sent that out across the agency.”

Also, according to news reports, in a May 24, 2017, speech, Pruitt repeated that the Agency would depart from the sue-and-settle approach and that he has issued a directive stating the days of rulemaking by consent order are over.

Stakeholders and Public Excluded

In response to the news reports, in a June 29, 2017, letter, Republican chairs of the House Committee on Energy and Commerce and the Committee on the Judiciary wrote to Pruitt and Attorney General Jeff Sessions that sue and settle “too often circumvents legitimate oversight by Congress and the Office of Management and Budget’s Office of Information and Regulatory Affairs. It also frequently prevents affected stakeholders and the public from participating as fully in the rulemaking process as otherwise would be possible.”

The chairs further stated that they appreciated the change in policy and urged the EPA and the Department of Justice (DOJ) to develop conforming guidance as soon as possible. The letter also requested that EPA and DOJ staff brief committee staff on the scope of the directive.

A Directive without Documentation?

Several days later, the Center for Biological Diversity announced that it filed a Freedom of Information Act (FOIA) request with the EPA to learn about the directive. In response to the FOIA request, the EPA informed the Center that it had no records relating to sue-and-settle agreements. According to the Center, the EPA told one news organization that Pruitt’s directive was “oral” and not in written form.

“How can the head of an agency send out a directive without any documentation?” said Brett Hartl, government affairs director at the Center. “Scott Pruitt is turning the EPA into one of the least transparent agencies in the federal government. He may think that he can do all of the EPA’s business in the shadows while cozying up to industry, but he’s dead wrong. It’s illegal, and the American people won’t stand for it.”

The letter from the House committee chairs is here.