EPA Ends Obama-era Sue-and-Settle Policies

Published November 9, 2017

Environmental Protection Agency (EPA) Administrator Scott Pruitt​ announced he was ending a controversial practice known as “sue and settle,” under which the agency during the Obama administration cut deals with environmental groups leading to new regulations outside of the normal regulatory process in the absence of public notice, state input, and lengthy comment periods.

“The days of regulation through litigation are over,” Pruitt said in an October 16 statement, announcing EPA’s policy change. 

As reported by Fox News, “Republicans, including Pruitt, had fought with the Obama administration in court over what they described as a back-room practice that led to more red tape. They claimed the EPA routinely entered into consent decrees with environmental groups that had sued the agency, in turn leading to new regulations for states – covering clean air rules and more – without allowing them to defend their interests.”

Pruitt announced “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.”

Defining Sue-and-Settle

Increasingly special interest groups have sued EPA and other agencies seeking to force them to issue regulations that advance their interpretation of a rule or law, or enact new regulations or update existing ones on a specified timeline.

Under the “sue-and-settle” practice, EPA gets sued by an outside party requesting a court compel EPA or the other agency in question to take certain steps, either through change in a statutory duty or enforcing specific timelines, and then EPA will acquiesce through a consent decree or settlement agreement, affecting its obligations under the statute. The agreement requires the agency to enact new policies outside of the regulatory process, regardless of resource availability or the its other budget priorities.

“Oftentimes, these agreements are reached with little to no public input or transparency,” said EPA’s statement announcing the new policy. “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.”

“‘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,” EPA’s statement said.

Public Notice, No Attorney’s Fees

The new policy requires EPA to provide notice to states within 15 days of receiving an interest group’s filing a notice of intent to sue the agency to enact a timeline or enforce a rule. The agency would also notify states and provide for a public comment period for any a settlement or consent decree under consideration by the agency.

As Oklahoma’s Attorney General, Pruitt was one of the most outspoken critics of “sue and settle” during the Obama administration, claiming at the time dozens of lawsuits filed by environmental groups led to settlement arrangements including terms beyond the legal requirements established by Congress in the relevant law.

Other provisions of EPA’s new policy include:

  • EPA shall publish online a searchable, categorized list of existing consent decrees and settlement agreements governing its actions, providing a brief description of the terms of each consent decree and settlement agreement, including attorney’s fees and costs paid, with the database updated with any new final consent decree or settlement agreement within fifteen days of its execution.
  • “EPA shall not enter into a consent decree with terms that the court would have lacked the authority to order if the parties had not resolved the litigation. EPA shall also not enter into a consent decree or settlement agreement that converts an otherwise discretionary duty of the Agency into a mandatory duty to issue, revise, or amend regulations.”
  • For any agreement EPA enters into to resolve litigation through a consent decree or settlement, since there will be no “prevailing party,” the Agency “shall seek to exclude the payment of attorney’s fees and costs to any plaintiff or petitioner in the litigation.”

Some Republican lawmakers praised EPA’s decision to end the previous administration’s “sue-and-settle” policy.

“The Environmental Protection Agency should not make regulations by settling lawsuits behind closed doors,” said Sen. John Barrasso (R-WY), chairman of the Senate Environment and Public Works Committee told the Washington Times. “Under the last administration, the EPA advanced its political agenda by abusing its authority and leaving states and Congress in the dark. The public deserves to know how its government is operating.”

H. Sterling Burnett, Ph.D., ([email protected]) is the managing editor of Environment & Climate News.