Environmental Groups Vow to Continue Suing Even If EPA Will Not Settle
Caitlin Rayhart*
Is the practice of administrative agencies settling lawsuits brought by advocacy groups, dubbed “sue-and-settle,” an affront to democracy, or a good way to hold administrative agencies accountable when they fail to enforce their own laws and meet their own deadlines? This divisive practice has come under a lot of scrutiny in recent years, and on October 16, 2017, the Environmental Protection Agency (EPA) Administrator Scott Pruitt “issued a directive to end ‘sue and settle’ practices within the EPA.” Sue and Settle: Regulating Behind Closed Doors, U.S. Chamber Com. (Feb. 1, 2018, 3:30 PM), https://www.uschamber.com/report/sue-and-settle-regulating-behind-closed-doors. According to the memo Mr. Pruitt wrote to go along with the directive, he believes that these sorts of lawsuits undermine due process, the rule of law, and the principles of cooperative federalism. Letter from E. Scott Pruitt, Adm’r, Envtl. Protection Agency, to Assistant Adm’rs et al. (Oct. 16, 2017), https://www.epa.gov/sites/production/files/2017-10/documents/signed_memorandum_in_support_of_consent_decree_and_settlement_agreement_oct162017.pdf. Is Mr. Pruitt really putting a stop to an abusive practice by environmental advocacy groups, or is this just a thinly veiled attempt to avoid enforcing laws that he disagrees with?
I. WHAT IS SUE AND SETTLE?
“Sue-and-settle is a process whereby an advocacy group sues a regulatory agency, charging the agency with violations of a non-discretionary statutory duty.” Ben Tyson, Note, An Empirical Analysis of Sue-and-Settle in Environmental Litigation, 100 Va. L. Rev. 1545, 1545 (2014). Rather than defend itself at trial, the agency agrees to settle with the advocacy group. Id. The resulting agreement binds the agency to take action to resolve the advocacy group’s claims. Id. In 2013, the United States Chamber of Commerce published a report stating that under the pro-green Obama administration, the EPA became chummy with advocacy groups and conspired to further their own agenda while shutting citizens and businesses out of the rulemaking process. Id. at 1546.
According to the Sierra Club’s legal director, Pat Gallagher, “sue-and-settle” is a “false concept.” Pat Gallagher, Scott Pruitt and the Myth of “Sue and Settle,” Sierra (Oct. 18, 2017), http://www.sierraclub.org/sierra/scott-pruitt-and-myth-settle-and-sue. In response to Mr. Pruitt’s action, Gallagher explains that there are “two main types of negotiated settlements in environmental law: decision-forcing settlements and substantive settlements.” Id. “[Decision-forcing settlements] only ask[] for an agency to make some sort of decision under normal rulemaking procedures, including any notice-and-comment requirements of the applicable statutory scheme. [And] . . . the only action sought from the agency is to engage in any course of action on the topic, not achieve any particular result.” Tyson, supra, at 1552. Substantive settlements require the government to make a specific kind of decision, such as setting a water quality standard. Gallagher, supra.
“While in both cases, ‘[s]ettlement negotiations are . . . conducted in unpublicized, secret meetings among a limited number of parties, in the case of decision-forcing consent decrees, all impacted parties are given a meaningful opportunity to be heard through the applicable public notice-and-comment rulemaking requirements.’” Id. (alteration in original).
II. IS THIS PRACTICE A PROBLEM?
Requiring an administrative agency to do its job does not sound like a bad thing, so what is the problem? Depending on where one looks, it is easy to locate grossly different views of this process. Compare Gallagher, supra (arguing that sue-and-settle is an important tool that allows advocacy groups to hold the government accountable when it is falling down on its obligations), with Sue and Settle: Regulating Behind Closed Doors, supra (referring to sue-and-settle as a process by which advocacy groups subvert normal rulemaking and shut the public out of regulatory decisions).
A report from the United States Chamber of Commerce states that “[t]hese settlement agreements are negotiated behind closed doors with no participation from the public or affected parties. As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups.” Sue and Settle: Regulating Behind Closed Doors, supra. According to the report, “[t]hese cases resulted in settlement agreements and EPA publishing more than 100 new regulations – including the Clean Power Plan.” Id.
Mr. Pruitt’s directive and accompanying memo include new policies and procedures supposedly designed to increase transparency, public engagement, and accountability. Memorandum from E. Scott Pruitt, Adm’r, Envtl. Protection Agency (Oct. 16, 2017), https://www.epa.gov/sites/production/files/2017-10/documents/signed_consent_decree_and_settlement_agreement_directiveoct162017.pdf. “Major changes include providing advance notice to the public of any notice of intent to sue or proposed settlement agreement, allowing the public to weigh in on proposed or modified consent decrees and settlements, and to exclude attorney fees and litigation costs when settling with suing parties.” Sue and Settle: Regulating Behind Closed Doors, supra.
The Sierra Club, conversely, is calling this move Mr. Pruitt’s “way of refusing to enforce our nation’s critical environmental laws.” Gallagher, supra. According to Gallagher, this process “enhance[s] public participation, because members of the public would never have a chance to weigh in on matters affecting their health were the agency allowed to ignore statutory deadlines and bury problematic issues.” Id. (emphasis omitted). The article also states that seventy-five of the seventy-nine settlements negotiated by environmental advocacy groups, that were also scrutinized by the Chamber of Commerce, were decision-forcing settlements that “compelled federal agencies to do their job when they badly missed the deadlines Congress set out in the Clean Air Act, Clean Water Act, and similar laws.” Id. The Sierra Club sees this directive as an attempt to deter groups from suing the EPA when it falls down on its responsibilities and fails to meet deadlines. See id. It is clear however, from the article, that it has no qualms about “frivolously litigating deadline cases” if that is what it takes to hold the EPA accountable. See id. The article ends with the ominous decree: “We will not be deterred.” Id.
III. WILL THERE BE ANY IMPACT ON EPA LITIGATION?
Some advocacy groups have speculated that Mr. Pruitt’s directive will not have too much of an impact. Juliet Eilperin, EPA Administrator Pruitt Issues Directive to Curb Settlements with Outside Groups, Wash. Post (Oct. 16, 2017), https://www.washingtonpost.com/politics/epa-administrator-pruitt-issues-directive-to-curb-settlements-with-outside-groups/2017/10/16/b62967ba-b280-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.78a3954ed256; see also Gallagher, supra (noting that environmental groups will not be deterred). This is because “[t]he Clean Air Act and other environmental laws provide citizens and outside groups broad latitude to sue the EPA when it is failing to meet statutory deadlines . . . .” Eilperin, supra.
Furthermore, John Walke, director of the Natural Resources Defense Council’s Clean Air Project, says that Mr. Pruitt cannot actually determine whether attorney’s fees are granted in these disputes. Id. “[T]he judge handling such cases typically determines the amount of legal fees the government must pay as part of any consent decree.” Id. If advocacy groups will not be deterred from bringing suits, and the EPA will not enter into settlement negotiations, it seems that a lot of government resources will ultimately go toward needless litigation.
IV. CONCLUSION
It is not entirely clear whether advocacy groups suing administrative agencies, under statutes that allow citizen suits to enforce the non-discretionary statutory duties of that agency, is really an abuse of process provided that all affected parties are given the opportunity to weigh in. If an administrative agency is not living up to the deadlines and obligations set upon them by Congress, they should be held accountable. However, if regulated groups are truly being shut out of conversations that directly affect their interests, that practice needs to end. See Tyson, supra, at 1554 (“Sue-and-settle poses a threat to the notice-and-comment process when substantive consent decrees are sought and granted.”).
Given that the majority of negotiated settlements between environmental groups and the EPA were decision-forcing, and not substantive, this practice does not seem as perverse as it is often made out to be. See Gallagher, supra; see also David Blackmon, Pruitt’s EPA Directive Sends the ‘Sue-and-Settle’ Racket into Its Death Rattle, Forbes (Oct. 19, 2017, 11:10 AM), https://www.forbes.com/sites/davidblackmon/2017/10/19/pruitts-epa-directive-sends-the-sue-and-settle-racket-into-its-death-rattles/#55bf832e3839 (“[T]he number of consent decrees entered into via this ‘sue and settle’ racket rose dramatically during the Obama years.”). Mr. Pruitt’s directive may waste government resources by litigating suits that could more easily be settled, but it may also produce meaningful dialogue about environmental issues in the process.
*Caitlin Rayhart is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review. Caitlin is also a member of the National Environmental Moot Court Team. This upcoming summer, Caitlin will intern at the Department of Justice’s Environmental and Natural Resources Division.
University of Baltimore Law Review 