“The days of regulation through litigation are over,” according to EPA Administrator Scott Pruitt.
In fulfilling his promise to end the practice of regulation through litigation that has harmed the American public, the EPA Administrator issued an agency wide directive on October 16, 2017 designed to end “sue and settle” practices within the Agency, restoring public participation and transparency in EPA rule making.
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 legislative and 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, often based on questionable science or just plain junk science. 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 creating timelines, and then EPA will acquiesce through a consent decree or settlement agreement, creating some new Agency obligation.
More specifically, EPA either commits to taking an action that is not a requirement under its governing statutes or agrees to a specific, unreasonable timeline to act. Oftentimes, these agreements, many of which are broad public policy matters where Congress has expressly declined to act, are finalized with little to no public input or transparency. That is regulation through litigation that is inconsistent with the authority that Congress has granted, the responsibility of government to operate in an open and fair manner, and exceeds the proper role of the judicial branch.
“Sue and settle” cases establish Agency obligations without participation by states or the regulated community; foreclose meaningful public participation in rulemaking; effectively force the Agency to reach certain regulatory outcomes, unduly burden owners of land, and cost the American taxpayer millions of dollars with little if any environmental efficacy.
Among the abuses of this practice have been the Chesapeake Bay TMDL clean water plan, that has no basis is statutory authority nor basis in good science; and similarly regional haze rules and the forced listing of the Lesser Prairie Chicken under the Endangered Species Act.
This is not a conservative versus liberal issue, however, the Obama Administration used “sue and settle” far more than previous presidential administrations to enact new regulations. Obama apparently had 137 “sued and settle” regulations during his Administration.
With this new directive, the EPA is also ensuring the increased transparency when considering a settlement agreement or consent decree by: Publishing all notices of intent to sue the Agency within 15 days of receiving the notice; 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; Reaching out to and including any states and/or regulated entities affected by potential settlements or consent decrees; 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; Expressly forbidding the practice of entering into any consent decrees that exceed the authority of the courts; Excluding attorney’s fees and litigation costs when settling with those suing the Agency; and, Providing a public hearing on a proposed consent decree or settlement when requested.
The video of the signing can be found here.
The full directive and memo can be read here.
Environmental regulation through litigation is wrong, is often based on junk science, and almost always makes bad public policy. This return to regular order is good for all Americans and good for the planet.