GOP Eyes Biden Sue-and-Settle Policy

LINCOLN, Neb. (DTN) -- Thirty-six members of Congress launched an investigation into why the Biden administration reversed course on a Trump administration policy that allowed public visibility into the practice of sue and settle within federal agencies.

Last week the Republican members of the House Committee on Oversight and Reform and the Western Caucus sent letters to EPA Administrator Michael Regan and U.S. Department of the Interior Secretary Deb Haaland asking for documents and other materials in connection to the decision.

Through the sue-and-settle process, 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.

Back in 2017, then-EPA Administrator Scott Pruitt announced an agency-wide directive to end the practice. Pruitt proclaimed in a news release the days of "regulation through litigation are over."

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 the 2017 news release.

The Biden EPA released a memorandum on March 18, 2022, which revoked the Trump directive while stating the agency was "committed to fair, transparent, and efficient resolution of environmental claims brought against the EPA."

The GOP letters to Regan and Haaland said the Biden administration's "decision to reverse course and allow special interest groups to make policy without stakeholder input is troubling."

The letters were led by House Committee on Oversight and Reform Ranking Member James Comer, R-Ky., and Western Caucus Chairman Dan Newhouse, R-Wash. The representatives asked the agencies for documents and communications in connection to the March 2022 directive, as well as all documents and communications between EPA and any groups or individuals outside the agency regarding the sue-and-settle practice.

"Often times these cases affect state-level considerations while shutting out the states and other critical stakeholders from the decision-making process," the representatives said in the letters.

"Previously, federal agencies had transparency tools that allowed every entity -- state legislatures, private companies, interest organizations, and others -- affected by the regulation at issue to have the opportunity to participate in the decision-making process. The agency claims to be fair, transparent and efficient but its memorandum favors special interest groups over the American people. EPA's actions raise new questions about the Biden administration's commitment to transparency and accountability."

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. Fifteen 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. Fourteen of 17 major rules finalized since 2008 were the result of citizen deadline lawsuits. Deadline suits are such a concern 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 more on DTN:

"Pruitt Touts end to EPA Sue-and-Settle," https://www.dtnpf.com/…

Read the letters here:

https://republicans-oversight.house.gov/…

https://republicans-oversight.house.gov/…

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

Follow him on Twitter @DTNeeley

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