Environmental Protection Agency Administrator Scott Pruitt issued a directive on Monday to limit the extent to which the EPA can reach legal agreements with groups suing to force it to take regulatory action.
Ending the practice known as "sue and settle" has long been a top priority for conservatives and business groups. In recent years, especially under the Obama administration, the EPA and other agencies resolved litigation over delays in issuing rules by agreeing to specific timelines to act and reimbursing plaintiffs' attorney fees.
In a news briefing, Pruitt said he was taking action to ensure that consent decrees “are not used in an abusive fashion to subvert due process” and to exclude the public from weighing in.
“It’s very important that we do not get engaged in regulation through litigation,” he said. “This is something that is a long time coming with respect to this agency.”
Pruitt said his action will not bar the EPA from reaching settlements with outside litigants but that he wanted to block any agreements “changing a discretionary duty to a nondiscretionary duty.”
He said it also was important to end the payout of attorney fees, since such settlements have “no prevailing party” and some payments are part of informal agreements that cannot be easily tracked.
The directive will provide for greater disclosure of potential settlements by directing the EPA to publish any notice of intent to sue within 15 days of receiving it, contacting states and any other entities potentially affected by such suits, and posting any proposed or modified consent decrees and settlements for a 30-day public comment period.
It represents the latest example of how Pruitt is changing federal policy he once challenged in court. In 2014, while serving as Oklahoma’s attorney general, he joined forces with the Domestic Energy Producers Alliance to file suit against the Interior Department and U.S. Fish and Wildlife Service on the grounds that they had used a “sue and settle” strategy with an environmental group to list several imperiled species.
But his push also is part of a broader effort by the Trump administration to limit federal funding to outside groups as part of litigation. In June, Attorney General Jeff Sessions issued a memo to block payments to third-party, not-for-profit groups as part of environmental settlements. Instead of allowing defendants to fund environmental measures as a way of meeting their obligations for violating the law, Sessions said, such penalties should go directly to the U.S. treasury.
The attorney general is “keenly interested and supportive of what we’re doing,” Pruitt said, adding that “other agencies are taking notice as well.”
Environmentalists on Monday questioned Pruitt’s motivations.
“There’s a general hostility to citizen enforcement of environmental laws, and it reflects the fact that Pruitt doesn’t want these laws enforced,” said Pat Gallagher, legal director for the Sierra Club.
The Sierra Club and government watchdog groups question whether Pruitt’s directive — inspired by a memorandum that Attorney General Edwin Meese issued in 1986 and that in 1991 was codified in the Code of Regulations — will have much direct impact. The 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, and the judge handling such cases typically determines the amount of legal fees the government must pay as part of any consent decree.
“That’s not his decision to make,” John Walke, director of the Natural Resources Defense Council’s Clean Air Project, said in an interview Monday. “A judge can impose attorney fees when an agency violates the law and citizens file suit to hold the government accountable.”
Pruitt emphasized that some agreements the Obama administration reached with environmental groups, such as one aimed at curbing regional haze, were forged without the input of affected states. In that particular case, he noted, North Dakota sought to intervene but was excluded. Nonetheless, the consent decree “imposed obligations” on North Dakota because federal officials found the state’s plan to control pollution insufficient.
“It’s like these groups have an additional step in the process to influence the policy,” said Daren Bakst, a research fellow in agricultural policy at the Heritage Foundation.
Bakst welcomed the idea of barring payment of plaintiffs’ legal fees, saying, “You want to eliminate the financial incentives for these groups to bring these actions.”
The Government Accountability Office, which published a 2014 report on the EPA's practice of settling with outside groups, found that the agreements it examined had only "limited" impact on the agency's rulemaking process. In February, a GAO report on endangered species found "settlement agreements did not affect the substantive basis or procedural rule-making requirements" that agencies pursued.
Pruitt, who will brief conservatives on this and other policy initiatives at the Eisenhower Executive Office Building on Tuesday, said he was not closing the door on settlements altogether. In May, for example, the agency struck a deal with a Canadian company hoping to build a massive gold, copper and molybdenum mine in Alaska’s Bristol Bay watershed, which will allow it to apply for federal permits.