Ending Collusion between EPA and Outside Groups

by Stoel Rives LLP
Contact

Stoel Rives LLP

EPA Administrator E. Scott Pruitt begins his October 16, 2017, directive on transparency and public participation in consent decrees and settlement agreements by stating, “EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlements that appeared to be the result of collusion with outside groups.” Administrator Pruitt declares “EPA will not resolve litigation through backroom deals with any type of special interest group.” Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, October 16, 2017. 

The directive and its supporting memorandum manifest three themes that Administrator Pruitt emphasized during his confirmation and early days on the job: (1) the importance of process, (2) adherence to rule of law, and (3) cooperative federalism. The Administrator admonishes previous EPA staff for executing consent decrees and settlements with “outside groups” that reshuffled and rushed the rulemaking agenda, abdicated executive authorities to the judiciary, ignored the interests of states, and interfered with the “powers of persuasion” that the participants in rulemaking processes can use to achieve better results for the American people.

To cure these ills, Administrator Pruitt establishes procedures to promote transparency and public participation in the consent decree and settlement processes involving lawsuits against EPA. Among the mandatory actions that Administrator Pruitt calls for are: (1) more online notice of letters of intent to sue and judicial filings; (2) notice to states and stakeholders in the regulated community; (3) an end to consent decree terms that the court lacks authority to order or that otherwise convert a discretionary duty to a mandatory duty to issue, revise, or amend regulations; (4) an end to awards of attorneys’ fees to plaintiffs or petitioners because in settlement there is no prevailing party; (5) terms allowing sufficient time for rulemaking; and (6) online public comment, possible public hearing, and explanation of statutory authority for any consent decree or settlement. Some of these actions are in EPA’s control, others -- like attorney fees -- are not.

According to the U.S. Chamber of Commerce, the top-ten list of most costly regulations resulting from sue and settle litigation include the Utility MACT Rule, the Lead Renovation, Repair and Painting Rule, the Oil and Natural Gas MACT Rule, the Boiler MACT Rule, NAAQS rules for Particulate Matter (PM2.5) and Ozone, Regional Haze rules, and Standards for Cooling Water Intake Structures. The U.S. Chamber of Commerce supported legislation to end the secretive settlement process that costs businesses millions of dollars in economic growth. Administrator Pruitt vowed repeatedly in early interviews to end the sue and settle practice where an outside group sues, sets the agency’s regulatory agenda through settlement, and bypasses the executive branch’s authority by putting the judiciary in charge of enforcing timelines, process steps, and outcomes.

Administrator Pruitt’s keen attention to due process, rule of law, and cooperative federalism are on full display in the directive and supporting memorandum. His appeals for transparency and public participation are noble. His goals of improving the lives and livelihoods of the American people are shared. Administrator Pruitt’s interpretation of how these principles are manifest in prior agency practice comports with his promises to the U.S. Chamber of Commerce and other groups that are outspoken critics of sue and settle litigation. His directive does not change the existing legal authority of “outside groups” to sue EPA when EPA’s statutory obligations are unfulfilled, however. Nor does his dissatisfaction with past settlements that resulted in promulgation of environmental regulations diminish the likelihood that these cases will be initiated in the future and that outside groups will request attorney’s fees. When initiated EPA will have to litigate or settle the claims. In any case, expect that resolution of these lawsuits will certainly take longer under the new transparency and public process procedures, increasing uncertainty and unpredictability for the regulated community.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Stoel Rives LLP | Attorney Advertising

Written by:

Stoel Rives LLP
Contact
more
less

Stoel Rives LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.