“The days of regulation through litigation are over,” – EPA Administrator Scott Pruitt

EPA Administrator Scott Pruitt issued an Agency-wide directive today designed to end “sue and settle” policymaking practices within the EPA. The boss of one of the government’s most powerful regulating bodies initiated a plan that delivers an unprecedented level of public participation and transparency in EPA consent decrees and settlement agreements.

EPA Boss Ends "Sue & Settle" Environmental Policymaking

“The days of regulation through litigation are over”: EPA Administrator Scott Pruitt

“The days of regulation through litigation are over,” Pruitt said.  “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.”

Directive ends ‘routinely paying attorneys fees’

“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.”

EPA said in a press release that special interest groups have gove outside the regulatory process for years, using lawsuits that seek to force federal agencies – especially EPA – to issue regulations that advance their interests and priorities, on their specified timeframe.

EPA described the recurring tactic like this: the agency gets sued by an outside party that is asking the court to compel it to take certain steps, either through 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.

Sue and settle creates policy often with zero public input

Oftentimes, these agreements are reached with no public input, the EPA said in a statement. “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,” the agency said.

“’Sue and settle’ cases establish agency obligations without participation by states and/or the regulated community; foreclose meaningful public participation in rulemaking; effectively force the agency to reach certain regulatory outcomes; and, cost the American taxpayer millions of dollars,” the agency said.

New rules to stop the ‘sue and settle’ practice

Pruitt’s directive issued today require:

  • Publishing any 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;
  • Providing sufficient time to issue or modify proposed and final rules, take and consider public comment; and
  • Publishing any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.

The full directive and memo can be read here.

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