26
Oct
EPA Curtails Public’s Ability to Make the Agency Obey the Law
(Beyond Pesticides, October 26, 2017) In mid-October, EPA Administrator Scott Pruitt announced another action in his effort to remake the agency by issuing a directive that aims 
to stop the practice — often referred to as “sue and settle” — of settling lawsuits with outside (often, environmental) groups. It’s the Administrator’s contention that such groups have had undue influence on regulation. He has indicated that his action will not prevent EPA from reaching settlements with “outside litigants,” but that he does want to disallow agreements that would change a discretionary duty to a nondiscretionary duty. However, responding to Administrator Pruitt’s comment about the days of “regulation through litigation” being over, the Natural Resources Defense Council (NRDC) notes, “That’s really just a twisted way of saying that the days of holding the EPA accountable are over. The effect won’t just be the EPA wasting taxpayer money as it fights unwinnable lawsuits, but also prolonging delays that allow polluters to keep on polluting.”
The agency’s press release quotes Mr. Pruitt: “‘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.’”
The release adds, “‘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 today’s directive, Administrator Pruitt is ensuring the Agency increase[s] transparency, improve[s] public engagement, and provide[s] accountability to the American public when considering a settlement agreement or consent decree.” Read the full directive here: https://www.epa.gov/newsroom/directive-promoting-transparency-and-public-participation-consent-decrees-and-settlement.
The directive says it wants to make EPA more transparent by providing more disclosure related to potential settlements: publishing any notice of intent to sue within 15 days of receipt of such notice, notifying states (or other entities) that might be affected, and publishing possible settlements or consent decrees for public comment for 30 days. It also intends to forbid the practice of agreeing to settlements that “exceed the authority of courts,” and to exclude plaintiff’s attorney’s fees and litigation costs in settling suits.
This practice of bringing pressure on the EPA (or other agencies) via lawsuit has been an important tool for the public in ensuring accountability of federal agencies, i.e., making sure the feds follow their own rules. During the last decade or so, when EPA (or other agencies) delayed rulemaking, citizens — typically through non-governmental organizations (NGOs) — would sometimes use litigation to get the agencies to act, and EPA often arrived at settlements or consent decrees to resolve the matters. When, for example, EPA misses a deadline that results in polluters violating regulations that protect public health and the environment, the public has been able to take the agency to court for remedy. According to Reuters coverage of the issue, “Most lawsuits by green groups . . . seek to push the agency to speed up regulation on issues such as climate and air and water pollution.”
This directive is the latest example of how Administrator Pruitt is acting to change the very federal policies he challenged in court as Oklahoma Attorney General. In that role, he sued EPA more than a dozen times and has long criticized the practice of “sue and settle.” Beyond that, this move appears to be part of a larger pattern in the Trump administration to rein in the disbursement of federal funds to external entities in litigation. In June 2017, Attorney General Jeff Sessions issued a memo to block payments to third-party, not-for-profit groups as part of environmental settlements. The Washington Post reported his comment: “‘Instead of allowing defendants to fund environmental measures as a way of meeting their obligations for violating the law, such penalties should go directly to the U.S. Treasury,’ Sessions said. ‘The attorney general is “keenly interested and supportive of what we’re doing,’” adding that ‘other agencies are taking notice as well.’”
Ending the practice of “sue and settle” has long been high on the to-do lists of business groups and conservatives. As Reuters reports, “Daren Bakst, a research fellow in agricultural policy at the [conservative] Heritage Foundation think tank, said sue and settle has led to ‘egregious antics’ that have ‘effectively handed over the setting of agency priorities to environmental pressure groups,’ and has led to rushed rulemaking by the agency.”
Environmental groups quickly weighed in on the issuance of the directive. Pat Gallagher, legal director for the Sierra Club, says, “There’s a general hostility to citizen enforcement of environmental laws, and [the directive] reflects the fact that Pruitt doesn’t want these laws enforced.”
Ecowatch says that the directive “will likely result in prolonged violations, delayed protection, and waste of government resources fighting lawsuits against which the EPA has no defense.”
Pat Parenteau, an environmental law professor at the Vermont Law School, said that “Pruitt’s directive would be ‘counterproductive’ and costly because in the end courts could fine the agency if it does not meet compliance dates for issuing regulations. ‘He can fight it if he wants as long as he wants, and spend as much money as he wants,’ Mr. Parenteau said. ‘But in the end if you’ve missed a statutory deadline, you are going to be ordered (by a court) to comply and then you are going to be ordered to pay fees.’”
Government watchdog groups suggest that the directive may not have much impact, given that many environmental laws, including the Clean Air Act, provide “broad latitude to sue the EPA when it is failing to meet statutory deadlines, and the judge handling such cases typically determines the amount of legal fees the government must pay as part of any consent decree. ‘That’s not his decision to make,’ said John Walke, director of the NRDC’s Clean Air Project. . . A judge can impose attorney fees when an agency violates the law and citizens file suit to hold the government accountable.’”
Groups have also noted that a 2014 report by the Government Accountability Office (GAO) on the EPA practice of settling with outside groups found that the Impact of such litigation on EPA’s rulemaking process is limited; similarly, a February 2017 GAO report on endangered species–related litigation found that “the settlement agreements did not affect the substantive basis or procedural rule-making requirements the Services were to follow in completing the actions.”
Mr. Walke said,“‘Pruitt’s doing nothing more than posturing about a nonexistent problem and political fiction. His targeting of legal settlements, especially where EPA has no defense to breaking the law, will just allow violations to persist, along with harms to Americans. . . . The irony is that polluters don’t even have to sue Pruitt to get what they want. They just pick up the phone and ask. Make no mistake, the unspoken Trump EPA agenda is to allow more corporations to ignore the law and prolong EPA breaking the law; both will lead to dirtier air, dirtier water, and sicker people.’”
