This week, United States Environmental Protection Agency (“EPA”) Administrator Scott Pruitt issued a directive to end the Obama-era “sue and settle” practice of the agency. Under the existing practice, environmental and special interest groups sue EPA to try to force the agency to take certain actions, and the agency typically settles those lawsuits by entering into private settlement agreements and public consent decrees. Those settlements often lead to the promulgation of environmental regulations, what Pruitt calls “the results of collusion with outside groups” that, according to him, takes place behind closed doors and excludes intervenors, interested stakeholders, and affected states from the process. Pruitt wants to put a stop to the “sue and settle” tactic, and his two October 16, 2017 memoranda, entitled “Adhering to the Fundamental Principles of Due Process, Rule of Law, and Cooperative Federalism in Consent Decrees and Settlement Agreements” and “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements,” work to do just that.
Pruitt has indicated that “the days of regulation through litigation are over” and that the agency “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.” The goal of the directive, he says, is to provide for more public participation and transparency in EPA consent decrees and settlement agreements.
Pursuant to the directive, EPA will publicly announce when it has received a notice of intent to sue, publish complaints served on EPA, notify affected states and regulated entities of complaints and seek concurrence of affected parties before entering into a settlement, and disallow the practice of entering into any settlements that would exceed the authority of the courts. The directive will also require that proposed or modified consent decrees and settlements be published for a public review and comment period. Finally, the directive requires EPA to seek to exclude the payment of attorneys’ fees and litigation costs to environmental litigants as part of a settlement.
The impact of Pruitt’s sue-and-settle directive remains to be seen. Environmental groups can – and undoubtedly will – continue to sue EPA, and EPA will still have to address those lawsuits either in the form of continuing through the litigation process in the courts or settling the cases. EPA may drag its feet even further in doing so, but the right to sue in the first instance cannot be, and is not, impacted by Pruitt’s latest missive.