President Barack Obama's U.S. Environmental Protection Agency took a lot of heat from rural America for working with environmental groups that sued the federal government on various aspects of environmental law.
Otherwise known as sue and settle, environmental groups and others have made a cottage industry out of suing and forcing EPA to settle. The agency has taken heat for making so-called backroom deals with those groups, often leading to changes in environmental laws.
On Monday, EPA Administrator Scott Pruitt announced an agency-wide directive to end the practice.
"The days of regulation through litigation are over," Pruitt said in an EPA news release.
"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."
Typically when EPA is sued by an outside party, that party asks a court to compel the agency to take certain steps. That can lead to "change in a statutory duty or enforcing timelines set by the law, and then EPA will acquiesce through a consent decree or settlement agreement, affecting the agency's obligations under the statute," EPA said in a news release.
"More specifically, 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. Oftentimes, these agreements are reached with little to no public input or transparency. That is regulation through litigation, and it is inconsistent with the authority that Congress has granted and the responsibility to operate in an open and fair manner."
As part of the directive EPA will publishing notices of intent to sue the agency within 15 days of receiving the notices. EPA will publish 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."
The directive includes requiring the agency to reach out to states and other regulated parties that are affected by potential settlements or consent decrees.
EPA also is expected to publish a list of decrees and settlements within 30 days, along with other information. Pruitt will forbid the practice of entering into consent decrees that "exceed the authority of the courts."
In addition, the agency will publish proposed or modified consent decrees and settlements for 30-day public comment, as well as provide a public hearing when requested.
A January 2015 Government Accountability Office report detailed the practice of sue and settle.
GAO said EPA issued 32 major rules from May 31, 2008, through June 1, 2013. William Yeatman, a senior fellow at the Competitive Enterprise Institute specializing in energy policy and global warming in 2015, told DTN at the time that the report downplayed the significance of sue-and-settle.
Yeatman said GAO implied that just nine of 32 major rules came about as a result of deadline suits. However, he said what GAO left out was 15 of the 32 rules had nothing to do with lawsuits at all.
Five of the 32 rules finalized came about as a result of court orders in deadline suits, he said. Fourteen of 17 major rules finalized since 2008 were the result of citizen deadline lawsuits. Deadline suits are such a concern, he said, because the Clean Air Act especially has hundreds of built-in deadlines for EPA subject to lawsuits.
The Clean Water Act has far fewer EPA deadlines than the Clean Air Act, for example. There are a few instances where Clean Water Act lawsuits have led to major EPA regulations, including the creation of daily pollution load standards in the Chesapeake Bay and nutrient limits that came about in Florida.
In August 2011, GAO reported the number of new environmental litigation cases of all types filed against EPA each year from 1995 to 2010 averaged 155 cases per year.
Read the Pruitt directive here: http://bit.ly/…
Todd Neeley can be reached at firstname.lastname@example.org
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