EPA Changing Course

EPA to Curb Sue-and-Settle; Lawmakers Want Briefing on New Policy

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The U.S. Environmental Protection Agency is going in a new direction on its sue-and-settle policy. (Photo by Chris Clayton)

OMAHA (DTN) -- For many years, environmental and other interest groups have filed lawsuits to force the U.S. Environmental Protection Agency to conduct rulemakings on a variety of issues.

During President Barack Obama's administration, his EPA faced sharp criticism for a seeming willingness to readily settle with those groups on such lawsuits, resulting in new rules being drafted.

Now, the EPA reportedly is moving in a different direction.

The chairmen of five different Congressional committees that conduct oversight of EPA last week asked new EPA Administrator Scott Pruitt and U.S. Attorney General Jeff Sessions to schedule a briefing with the committees on the agency's new policy.

According to the letter, Pruitt "sent out a directive across the agency" to "curtail the sue-and-settle policy."

Farmers and agriculture interest groups across the country have raised concerns about a seemingly growing number of lawsuits filed by environmental groups aimed at agriculture and other industries during the Obama administration beginning in 2008. Environmentalists and others who have sued EPA do so based on the agency missing important deadlines -- primarily in the Clean Air Act.

The lawmakers cited a news report of Pruitt speaking during an environmental policy conference during which he indicated consent decrees as a result of such lawsuits should not be used in rulemaking because it "subverts" the public rulemaking process Congress established.

"We appreciate this change in policy, hope that Attorney General Sessions shares Administrator Pruitt's views, and urge EPA and the Justice Department to develop conforming written guidelines as soon as possible," the letter said.

The letter was written by Rep. Greg Walden, R-Ore., chairman of the House Committee on Energy and Commerce; Rep. Bob Goodlatte, R-Va., chairman of the House Committee on the Judiciary; Rep. John Shimkus, R-Ill., chairman of the House Committee on Energy and Commerce's Subcommittee on Environment; Rep. Tom Marino, R-Pa., chairman of the House Committee on the Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law; and Rep. Tim Murphy, R-Pa., chairman of the House Committee on Energy and Commerce Subcommittee on Oversight and Investigations.

"During the previous administration, EPA entered numerous settlements or consent decrees, a practice known as 'sue and settle,' committing the agency to undertake significant new rulemakings subject to timelines or schedules," the letter said.

"This process 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 Clean Water Act has far fewer EPA deadlines. There are a few instances, however, 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.

A report from the Government Accountability Office in January 2015, "Impact of Deadline Suits on EPA's Rulemaking Is Limited," however, found that the effects of settlements in deadline suits on EPA's "rulemaking priorities is limited."

GAO reports EPA issued 32 major rules from May 31, 2008, through June 1, 2013. Of that total, nine were issued following seven settlements in deadline lawsuits, all under the Clean Air Act. Four rules were issued on the Clean Water Act.

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 letter here: http://bit.ly/…

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley