USEPA Administrator Pruitt Issues Directive to End "Sue & Settle"
In fulfilling his promise to end the practice of regulation through litigation, U.S. Environmental Protection Agency (USEPA) Administrator Scott Pruitt issued a directive designed to end “sue and settle” practices within the USEPA, providing an unprecedented level of public participation and transparency in USEPA consent decrees and settlement agreements.
“The days of regulation through litigation are over,” says Pruitt. “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. 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.”
The USEPA says over the years, special interest groups have used lawsuits that seek to force Federal agencies to issue regulations that advance their interests and priorities, on their specified timeframe. The common process consists of USEPA getting sued by an outside party that is asking the court to compel the USEPA to take certain steps, either through change in a statutory duty or enforcing timelines set by the law. The USEPA typically acquiesces through a consent decree or settlement agreement, affecting the Agency’s obligations under the statute.
With the new directive, USEPA says Administrator Pruitt is ensuring the Agency increase transparency, improve public engagement, and provide accountability to the American public 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 USEPA is a defendant or respondent in Federal court within 15 days of receipt;
- Reaching out to and including any States and/or regulated entities affected by potential settlements or consent decrees;
- Publishing a list of consent decrees and settlement agreements that govern USEPA 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 USEPA;
- Providing sufficient time to issue or modify proposed and final rules, receive, and consider public comment; and
- Publishing any proposed or modified consent decrees and settlements for a 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.