Declaring that “the days of regulation through litigation are over,” US Environmental Protection Agency Administrator E. Scott Pruitt issued a directive on Oct. 16 aimed at increasing public participation and transparency in consent decrees and settlement agreements.
“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,” Pruitt said. “Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle.”
Environmental organizations and other special interest groups have sued EPA and other federal agencies over the years to compel them to issue regulations that advance the groups’ interests and priorities within a specified time frame. Agencies subsequently acquiesce and accept negotiated court decrees to save further legal costs.
Pruitt said these “sue-and-settle” cases establish agency obligations without participation by states and 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.
Pruitt said his directive attempts to ensure that EPA increases transparency, improves public engagement, and provides public accountability when considering a settlement agreement or consent decree by:
• Publishing any notices of intent to sue the agency within 15 days of receiving the notice.
• Publishing any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the agency is a defendant or respondent in federal court within 15 days of receipt.
• Reaching out to and including any states and regulated entities affected by potential settlements or consent decrees.
• Publishing a list of consent decrees and settlement agreements that govern EPA actions within 30 days, along with any attorney fees paid, and update it within 15 days of any new consent decree or settlement agreement.
• Expressly forbidding the practice of entering into any consent decrees that exceed the authority of the courts.
• Excluding attorney’s fees and litigation costs when settling with those suing the agency.
• Providing sufficient time to issue or modify proposed and final rules, take and consider public comment.
• Publishing any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.
Contact Nick Snow at [email protected].
