Last week, U.S. Environmental Protection Agency Administrator Scott Pruitt issued a directive intended to stop a practice known as “sue and settle.” Many have long criticized this practice, in which non-governmental organizations (“NGOs”) sue EPA (or other federal agencies), seeking to force the agency to take a certain action, such as issuing new regulations. Often EPA reaches a settlement with an NGO under which EPA agrees to take the action, such as issuing a new regulation on a certain timeline, with little to no input from other parties who will be affected, including state regulatory agencies and regulated industries.
Critics of the practice believe “sue and settle” amounts to regulating behind closed doors, outside the normal regulatory process which should be transparent to the public. Rather than being involved early on in the process, some stakeholders (most significantly, states and regulated industries) do not learn of new proposed regulations until they appear in the Federal Register. The NGOs that sue are essentially given preferential input on agency policies and priorities, such as the substance and timing of new regulations.
To restore public participation and transparency, the new directive requires EPA to implement the following procedures:
- Publish any notices of intent to sue EPA within 15 days of receiving the notice;
- Publish any complaints or petitions for review in regard to an environmental law, regulation, or rule in which EPA is a defendant or respondent in federal court within 15 days of receipt;
- Reach out to and include any states and/or regulated entities affected by potential settlements or consent decrees;
- Publish 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 forbid the practice of entering into any consent decrees that exceed the authority of the courts;
- Exclude attorney’s fees and litigation costs when settling with those suing EPA;
- Provide sufficient time to issue or modify proposed and final rules, take and consider public comment; and
- Publish any proposed or modified consent decrees and settlements for 30-day public comment, and provide a public hearing on a proposed consent decree or settlement when requested.
This article was authored by Jennifer L. Hughes, Jackson Kelly PLLC.