Pruitt clamps down on ‘sue and settle’

By Hannah Northey | 10/16/2017 01:02 PM EDT

U.S. EPA Administrator Scott Pruitt will sign a memo directing his agency to limit the "sue and settle" practice.

U.S. EPA Administrator Scott Pruitt will sign a memo directing his agency to limit the "sue and settle" practice. @EPAScottPruitt/Twitter

U.S. EPA Administrator Scott Pruitt moved today to curb settlements with environmental groups, a practice critics say the Obama administration used to issue new regulations.

Pruitt signed an agencywide directive that puts in place timelines for public notice of complaints against EPA.

It also steps up outreach to states or entities affected by consent decrees or settlements and moves to block attorney fees and litigation costs from being included in any deals.


"The days of regulation through litigation are over," Pruitt said in a statement. "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."

E&E News first reported in July that Pruitt had directed aides to limit "sue and settle" practices. EPA at the time said the order was an "oral directive" (Greenwire, July 3).

According to the new document, EPA’s Office of General Counsel will publish any notice of intent to sue the agency within 15 days of receiving such a notice from potential litigants.

The same time frame will apply to any complaints or petitions for review of environmental laws, regulations or rules in which the agency is a defendant or respondent in federal court.

EPA will reach out to states and regulated entities affected by a potential settlement or consent agreement, and will post — and regularly update — a list of all such deals, as well as attorney fees paid.

EPA is also now forbidding the "practice of entering into any consent decrees that exceed the authority of the courts" and will move to exclude attorney’s fees and litigation costs when settling with parties suing the agency. Such fees will be handled in a formal manner going forward, EPA said.

Any proposed or modified consent decree or settlement will be published for a 30-day public comment period — unless a different amount of time is required by law — and a public hearing may be held if one is requested, said the directive.

EPA said today the directive was necessary given that special interest groups have filed lawsuits for years to force the agency to issue regulations to advance their interests and priorities, and on their specified time frame.

Such agreements are oftentimes reached with little to no public input or transparency, EPA said, calling such a practice "regulation through litigation."

While Pruitt today made the agency’s policy formal, some of it doesn’t appear to be a vast departure from ongoing EPA practices.

EPA, for example, already publishes notices of intent to sue online. Consent decrees lodged in court to resolve environmental violations are already subject to comment periods.

Environmentalists also argue that they generally enter into settlements with the agency to enforce mandatory — not discretionary — duties, such as deadlines written into the Clean Air Act.

Pruitt’s move is likely to delight Republicans who have for years warned special interest groups are using court-approved orders to push political agendas (E&E Daily, July 26).

And yet some conservatives are already calling for more. William Yeatman, a senior fellow at the Competitive Enterprise Institute and a self-described climate skeptic, said in a statement that more needs to be done to address the underlying problem: EPA’s "woeful performance" in meeting mandatory deadlines for regulatory programs.

"During the Obama administration, for example, the EPA missed 84 percent out of more than 1,000 Clean Air Act deadlines by an average of 4.3 years," Yeatman said. "The problem is that the agency’s failure to meet its legal responsibilities allows environmental special interests to sue and thereby dictate regulatory priorities to the EPA."

Environmental groups immediately blasted Pruitt for posturing about a "non-existent problem" to target legal settlements.

"Pruitt’s doing nothing more than posturing about a non-existent problem and political fiction," said John Walke, a top air and climate advocate at the Natural Resources Defense Council.

"His targeting of legal settlements, especially where EPA has no defense to breaking the law, will just allow violations to persist, along with harms to Americans," Walke said.

Reporter Amanda Reilly contributed.