U.S. Environmental Protection Agency Chief Scott Pruitt has directed staff to refrain from resolving litigation through "backroom deals" with special interest groups, a process the administrator referred to as "sue and settle" litigation.
Pruitt issued a directive to staff Oct. 16 detailing the end of sue and settle litigation, following a previous verbal directive to do the same. The administrator said the agency "has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups." He said those actions may have helped direct the agency's priorities and rules outside the normal administrative process and excluded other stakeholders such as intervenors and affected states.
"The days of this regulation through litigation, or 'sue and settle,' are terminated," Pruitt said. "EPA will not resolve litigation through backroom deals with any type of special interest group."
Pruitt's directive explained that the "sue and settle phenomenon" is a result of statutes that allow outside groups to file a lawsuit against an agency when a statutory deadline is missed, for example. The agency then moves to settle the matter with the party through a judicially enforceable order, and the suing party is allowed to recover attorney fees as a "reward" for "successful lawsuits."
"Taken to its extreme, the sue-and-settle strategy can allow executive branch officials to avoid political accountability by voluntarily yielding their discretionary authority to the courts, thereby insulating agency officials from criticisms of unpopular activities," Pruitt explained. He said the practice also deprives Congress of its ability to influence policy through oversight.
Pruitt announced a renewed commitment to process, rule of law and cooperative federalism with the states, all three values he touted upon assuming the EPA leadership.
Specifically, the EPA will, within 15 days, publish online any notices of intent to sue and any lawsuit received and notify any states and regulated entities that may be impacted by the lawsuit. Staff was also directed to engage the parties that may be impacted before entering into any consent decree or settlement agreement. The agency already posts notices of intent to sue online. Within 30 days, the EPA will create a searchable, categorized list of the consent decrees and settlement agreements "that continue to govern the agency's actions," including any attorney fees or costs paid.
As for future agreements, the EPA shall not enter into a consent decree that includes terms a court would have lacked the authority to order if the litigation had resolved. Moreover, the EPA will no longer sign any agreements that convert a discretionary, or optional, duty, into a mandatory requirement to amend or issue a rulemaking.
Any proposed consent decrees must be posted online and in the Federal Register for the public to review and comment, with a proper explanation of the statutory basis for the agreement.
The sue and settle 'myth'
Republican members of Congress have long criticized sue and settle litigation, and several hearings on the issue have been held. Coal industry analysts have also said a rejection of the practice could eventually aid the industry.
U.S. Sen. John Barrasso, R-Wy., said in a statement that Pruitt's directive will increase transparency and ensure the agency is making policies that are fair and informed.
"The [EPA] should not make regulations by settling lawsuits behind closed doors," said Barrasso, who serves as chairman of the Senate Committee on Environment and Public Works. "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."
But the U.S. Government Accountability Office, environmental groups, Democrats and others say there is no such problem.
In a statement following Pruitt's announcement, the Sierra Club's Pat Gallagher called sue and settle a "myth" and said the move is an attack on the enforcement of environmental law. Gallagher, director of the Sierra Club's Environmental Law program, said the government typically seeks a settlement when significant legal vulnerability is present, such as when a legally mandated deadline has been obviously missed.
"If he insists on fighting the obvious, Pruitt will be guilty not just of failing to protect public health and the environment, but also of wasting agency resources, undermining the credibility of [Department of Justice] attorneys, and burdening the courts with useless litigation," Gallagher said. He added that the move will not dissuade groups like the Sierra Club from litigating environmental matters.