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EPA takes steps to stop ‘sue and settle’ practices

‘The days of regulation through litigation are over’

Posted October 18, 2017

On October 16, EPA Administrator Scott Pruitt issued an Agency-wide directive to end so-called “sue and settle” practices within the Agency. “The days of regulation through litigation are over,” Pruitt said.

In explaining EPA’s new stance, Pruitt said the Agency would no longer use consent decrees and settlement agreements to resolve lawsuits filed against EPA “where doing so would circumvent the regulatory process set forth by Congress.” In addition, EPA will no longer “routinely” pay attorney’s fees to the groups that sue the Agency.

The practice of “sue and settle,” according to Pruitt, occurs when special interest groups use lawsuits to try to force federal agencies to issue regulations that advance their interests and priorities on their particular timeframes. These groups ask the court to compel EPA to take certain steps, either through a change in a statutory duty or enforcing timelines set by the law. In response, EPA has acquiesced to these demands through a consent decree or settlement agreement.

Pruitt said that this means 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.

Pruitt’s main objection with the practice is that the agreements are often reached with little to no public input or transparency, which he calls “regulation through litigation.” These cases establish Agency obligations without participation by states or the regulated community; exclude meaningful public participation in rulemaking; effectively force the Agency to reach certain regulatory outcomes; and cost the taxpayers millions of dollars.

Pruitt directs EPA to take the following actions when considering a settlement agreement or consent decree:

  1. Publish any notices of intent to sue the Agency within 15 days of receiving the notice;
  2. Publish any complaints or petitions for review regarding an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court within 15 days of receipt;
  3. Reach out to and include any states and/or regulated entities affected by potential settlements or consent decrees;
  4. Publish 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. Exclude attorney’s fees and litigation costs when settling with those suing the Agency;
  6. Provide sufficient time to issue or modify proposed and final rules, take and consider public comment; and
  7. Publish any proposed or modified consent decrees and settlements for 30-day public comment, and provide a public hearing on a proposed consent decree or settlement when requested.

Finally, the directive expressly forbids the practice of entering into any consent decrees that exceed the authority of the courts.

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