EPA Issues Directive Regarding “Sue and Settle” Practice

Juliet Eilperin reported yesterday at The Washington Post Online that, “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.”

The Post article noted that, “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.”

Yesterday’s article added that, “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.”

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