On October 16, 2017, the now former Administrator of EPA, Scott Pruitt, issued a memo to the agency directing steps intended to end what has been known pejoratively as “sue and settle” – the practice of suing agencies, particularly EPA and the federal resource managers, for failing to meet statutory and regulatory deadlines, and then quickly settling with a consent decree mandating compliance by a set date, but not with a pre-determined result. And of course, payment of attorney’s fees to the plaintiffs.

In a post on October 18, 2017, we questioned the efficacy of the proposed actions, even assuming the alleged practice existed. A settlement reached on August 24, 2018, by the Department of Commerce over a deadline suit filed by environmental groups, raises another question: do agencies outside of EPA share the “sue and settle” concern?

In 2016, the National Marine Fisheries Service (NMFS) had determined that four distinct population segments of humpback whales remained endangered, but did not designate critical habitat as required under the Endangered Species Act. After it continued to delay designation, environmental groups filed suit on March 15, 2018, in the Northern District of California to force agency action. On August 24, the parties filed a Stipulated Settlement Agreement requiring agency action on the designation by June 18, 2019, along with the payment of $10,000 in attorney’s fees to plaintiffs. This settlement appears to be exactly what EPA’s memo was directed at.

What It Means

This settlement may be an example of what the Administration has railed against, but it is hard to argue this is a “bad deal” for anyone. The statute will be complied with, without forcing a particular result, and $10,000 seems extremely reasonable even for six months of litigation. One could legitimately ask why the Pruitt memo was issued to avoid this kind of result. Even more legitimately, one can ask whether anyone else in the government agencies even cares about a made-up issue.