State air regulators ask to be part of EPA settlement discussions

Noting that they are responsible for actually implementing about 90% of the US Environmental Protection Agency’s requirements, air-quality regulators from 48 states have asked to be included when EPA tries to settle lawsuits brought by environmental organizations.

“States are in the best position to determine how to allocate their scarce resources to advance the interests of clean air, clean water, and clean land,” Thomas W. Easterly, the Indiana Department of Environmental Management’s commissioner, told the US House Judiciary Committee’s Regulatory Reform, Commercial, and Antitrust Law Subcommittee.

“Addressing requirements imposed by consent decrees or settlement agreements entered into by EPA with a citizens group on a single issue diverts state resources from their larger goals—and actually can slow states’ progress in improving our environment,” he said during the subcommittee’s June 5 hearing on HR 1493, the Sunshine for Regulatory Decrees and Settlements Act of 2013.

Easterly, who also chairs the Environmental Council of the States’ compliance committee, said ECOS passed a resolution at its Mar. 6 meeting urging EPA to notify all affected state environmental agencies of citizen suits filed against the federal environmental regulator alleging a failure to perform its nondiscretionary duties.

“The issue is coming up more often because we’re dealing with acts that are 30-40 years old, and their implementation deadlines have passed,” Easterly said. “That gives environmental and other organizations an opportunity to sue. It took us 2 years to discuss this problem before we passed our resolution. We believe people should be able to hold government accountable, but we’d also like a seat at the table.”

Bill’s purpose

Subcommittee member Doug Collins (R-Ga.) said he introduced the bill on Apr. 11 to assure that individuals and businesses with legal standing because they would be affected by a negotiated lawsuit settlement and court order would be notified that discussions were taking place and able to intervene.

Committee Democrats protested that this intervention provision was too broad and would effectively allow anyone who drinks water to intervene if EPA was sued for not implementing Clean Water Act provisions on schedule.

Another witness—John D. Walke, who directs the Natural Resources Defense Council’s Climate & Clean Air Program—said the bill was completely unnecessary. “The product of consent decrees and settlements is initiation of a full rulemaking process that involves full public input under the Administrative Procedures Act,” he indicated.

Congress establishes deadlines when it passes environmental laws, he explained. Consent decrees result when agencies don’t meet those deadlines, and provide schedules for rulemakings with ample time for public comments, Walke said.

“These settlements are a natural and long-accepted part of our legal system,” he said. “Every administration in the modern era has entered into them so agencies can use money they’d spend in court for more urgent matters. Saying settlements are inherently bad turns the whole process upside down.”

US Chamber’s report

He noted that “Sue and Settle,” a report issued by the US Chamber of Commerce on May 20, was seriously flawed because it covered only settlements EPA reached during Barack Obama’s presidency and ignored others from George W. Bush’s and Bill Clinton’s terms. It also alleged, but did not substantiate, collusion between agencies and litigants, Walke and some committee Democrats said.

William L. Kovacs, the Chamber’s senior vice-president for environment, technology, and regulatory affairs, quickly disputed the collusion characterization. “There were no such allegations in our report,” he said. “We heard from every manufacturer that they didn’t become involved early in the process. When you’re a regulated industry, and you don’t know where the government is heading, a notice of intent to sue is important.”

Kovacs also disputed Walke and the Democrats’ suggestions that the Chamber and its members merely want to delay having to meet tougher environmental requirements by becoming part of the negotiations and slowing the process down.

“We don’t oppose regulations,” he declared. “But we believe there should be transparency. If the Administrative Procedures Act was working, we wouldn’t be having this conversation.” The Chamber’s researchers developed the report because federal agencies testified at a congressional hearing last year that they did not know how many negotiated settlements they’d reached with litigants, Kovacs said.

The fourth witness—Allen Puckett III, president of Columbus Brick Co. in Mississippi—noted that his family-owned firm, which has operated since the 1890s, would have to spend $8 million for new equipment and $2 million/year to operate it to satisfy a new EPA rule under a negotiated settlement in which Columbus Brick was not involved.

“If I walked into any of my lenders and asked to borrow that money with no prospect of making it back, I’d be laughed out of there,” he told the subcommittee.

Contact Nick Snow at nicks@pennwell.com.

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