Nearly 60 former U.S. EPA lawyers are urging Administrator Scott Pruitt to rethink his recent directive aimed at curbing the "sue and settle" practice by which groups take the agency to court to force regulations.
In a letter today, the 57 former counsels called the Oct. 16 directive "patently biased" and a violation of the separation of powers contained in the Constitution. They warned that it will lead to longer litigation and rushed rulemaking by creating unworkable requirements for entering into settlement agreements.
"With some minor exceptions, it is unfair, unrealistic, and ultimately counterproductive," the former agency lawyers wrote, adding that, "We strongly urge you to revise your Directive and explanation so that it truly promotes fair, transparent, and efficient settlement of well-founded suits against the agency."
Signing the letter were former lawyers from EPA’s Office of General Counsel and regional agency offices around the country. The list includes attorneys with decades of experience at EPA during both Democratic and Republican administrations.
"Administrator Pruitt’s directive and explanation make many unfounded allegations and serious mistakes, and skew the settlement process heavily toward industry. We had to speak out," said John Hannon, a former assistant general counsel who worked at EPA during the Clinton, George W. Bush and Obama administrations until his retirement in 2014.
Pruitt’s directive ordered the Office of General Counsel to put in place a number of provisions aimed at making the EPA litigation process more transparent, including posting complaints against the agency online and creating an online database of settlement agreements with outstanding obligations.
It required EPA lawyers to "seek concurrence" with regulated entities on proposed agreements with environmentalists. The agency should also "seek to exclude" attorneys’ fees or costs to any petitioner or plaintiff, Pruitt ordered.
Pruitt said the directive was necessary because, in the past, EPA negotiated closed-door deals with special interest groups in order to set a regulatory agenda. Critics have dubbed the practice "sue and settle," though the Government Accountability Office has twice found that it is not occurring at EPA (Greenwire, Oct. 16).
Environmentalists have roundly opposed Pruitt’s directive, saying it appears aimed at curtailing their efforts to hold EPA to mandatory duties contained in environmental statutes.
An EPA union also recently sent a letter to Pruitt outlining "deep concerns" and complaining that the administrator "falsely" accused agency lawyers of engaging in unlawful and unethical behavior (Greenwire, Nov. 7).
‘Foolhardy and a waste’
In their letter today, the former EPA lawyers said that the agency already gives states and other entities the opportunity to comment on most proposed settlements. The new requirements are "foolhardy and a waste of limited EPA resources."
Further, the letter calls the directive "a novel and dangerous conception of executive power" that upends the Constitution’s effort to balance the three branches of government.
The attorneys say they worry the directive’s "unworkable" concurrence provisions would allow any regulated entity to effectively have veto power over a proposed settlement agreement.
The directive is an attempt "to give regulated parties a special and powerful seat at the table with no corresponding role for other members of the public," the letter to Pruitt says.
Pebble deal
The former lawyers also noted that EPA recently settled a suit filed during the Obama administration by a company that proposed to mine the Pebble deposit in Alaska’s Bristol Bay region. That settlement did not abide by the transparency measures included in the directive.
"To the extent you exercise your discretion under the directive, you should do so fairly and even-handedly," the lawyers write, "and not only to promote and fashion settlements in cases brought against the agency by regulated entities."
Practically, Pruitt’s directive will lead to prolonged litigation and more unreasonable time frames for EPA to issue regulations, the letter warns.
Environmentalists and their state allies often bring suits over the agency missing statutory deadlines for action. In such cases, courts typically set tighter timelines for EPA to comply. Settlement negotiations often provide the agency with more flexibility.
"It is EPA’s failure to comply with legal requirements that is the problem, not the people who sue EPA, the courts that hear the suits, or the EPA and [Department of Justice] staff who faithfully negotiate settlements," the letter says.
The directive, the former EPA attorneys wrote, dooms "EPA and taxpayers to fewer settlements and more litigation, costing more money and resulting in more court-ordered timetables for agency action."
EPA did not respond to a request for comment today on the new letter. Pruitt last week defended the directive against the increasing criticism.
"EPA’s dedicated attorneys are among the best in the country, so those who say that being more transparent and increasing participation will make settlements impossible or result in losses in the courtroom have not met my legal team," Pruitt said in a statement.
