On October 16, U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a directive designed to end the agency’s practice of “sue and settle” and improve transparency and public participation in EPA consent decrees and settlement agreements. In the past, EPA has sought to resolve lawsuits against the agency through consent decrees and settlement agreements. In some cases, this resulted in EPA taking actions that had the effect of creating new Agency rules and priorities outside of the traditional regulatory process. In doing so, EPA excluded key stakeholders and regulatory partners, such as states and local governments, from the decision-making process.
Administrator Pruitt stated during the signing of the directive, “The days of regulation through litigation are over. 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.”
To ensure greater transparency and public engagement, and to ensure that EPA is able to be held publicly accountable when considering a settlement agreement or consent decree, the EPA will now take the following steps:
- Publish any notices of intent to sue the EPA within 15 days of receipt of the notice;
- Publish any complaints or petitions for review in regard to an environmental law or rule in which the EPA is a defendant in federal court within 15 days of receipt;
- Reach out to any states or regulated entities affected by potential settlements or consent decrees and include them in the discussion;
- Within 30 days, publish a list of consent decrees and settlement agreements governing EPA actions, along with any attorney fees paid, and update the list within 15 days of any new developments;
- Expressly forbid the practice of entering into consent decrees that exceed the authority of the courts;
- Exclude attorney fees and litigation costs when settling lawsuits;
- Provide enough time to issue or modify rules and to consider public comments; and
- Publish any proposed or modified consent decrees and settlements for a 30-day public comment period, and provide a public hearing when requested.
EPA‘s practice of sue and settle has created various problems for counties and local governments in recent years. For example, in 2010, one lawsuit resulted in the EPA’s establishing Chesapeake Bay Total Maximum Daily Load (TMDL) requirements, which set specific water pollution limits for nitrogen, phosphorous and sediment. Impacted states and localities were then required to develop Watershed Implementation Plans to address pollution loads from various sources – a huge unfunded mandate for both states and impacted counties. In another case, a lawsuit has led the EPA to consider whether the agency should require all building operators still using ballast light fixtures – which are common in buildings built before 1978 – to replace them. If the administration were to follow through with such a rule, it would create another unfunded mandate and have a major impact on local schools, hospitals, government centers and other buildings.
The administration, through this directive, hopes to avoid situations like those described above, where unfunded mandates and other regulatory actions are initiated and implemented outside of the normal regulatory process. To read the full directive and accompanying memo from Administrator Pruitt, click here.
A video of the signing can be found here.
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