The EPA has changed its policy on litigation in ways that make it harder for citizens and courts to hold the agency accountable when it fails to do its job.
Our major environmental laws, such as the Clean Air Act (CAA) and Clean Water Act, contain provisions that require the EPA to take certain actions on explicit schedules specified in the statutes themselves. For example, the CAA directs the agency to update health-, science-, and technology-based standards on a mandatory periodic schedule, typically at a frequency of every 5 or 8 years, so that the level of public health protection from air pollution provided by EPA rules reflects up-to-date developments in science and technology.
Congress viewed fulfillment of these obligations as essential to protecting public health, so much so that it authorized any citizen to bring a lawsuit for a court order compelling the agency to act whenever the EPA failed to meet its deadline to do so. Crucially, these provisions allow the attorneys representing citizens to be reimbursed for the time they spend forcing the government to do its job.
A long-standing EPA practice has been to settle citizen lawsuits, sparing itself expense and enhancing its opportunity to manage the practicalities of its workload by reaching agreement on the schedule by which it will carry out its obligation. By minimizing the resources and energy they have to put in and accelerating the remedy being sought – EPA’s commitment to follow a schedule – reaching a settlement rather than going through time-consuming litigation also benefits citizen litigants and their attorneys. The agency’s settlement practice contributes, in the end, to making the accountability mechanism Congress established workable.
The single issue set that virtually all of these agreements address is i) the schedule the agency will follow in carrying out a rulemaking and ii) the subjects the rulemaking will address, not how the EPA will address them. Settlement agreements in no way bind the agency to reach specific conclusions in any given rulemaking process nor do they in any way curtail the ability of any stakeholder, including businesses potentially affected by the regulations that emerge from the rulemaking, to participate fully in the rulemaking process itself. Such settlements address only rulemaking schedules, affecting neither the substance of the rules nor the rights of the businesses that may be interested in the development of the rulemakings themselves.
Now, however, American citizens and their attorneys will find it significantly more difficult to participate, and succeed in a timely way, in legal actions they take to compel the agency to meet its obligations.
On Oct. 16, 2017, Administrator Pruitt issued a directive regarding settling litigation designed to make it difficult to hold the EPA accountable. The directive makes a number of entirely unfounded and highly tendentious claims about what had been the standard settlement process. In fact, more than fifty retired career EPA attorneys issued an extensive public rebuttal of the directive’s claims, noting that “[Pruitt’s] explanation for the Directive does EPA and the Department of Justice, which represents EPA in lawsuits, a grave injustice by alleging, without evidence, collusion with outside groups. [Pruitt] fail[s] to acknowledge that a recent Government Accounting Office report found no basis for the claims [Pruitt] make[s].”
In substance, the directive adds a number of procedural hurdles that will make it harder for the EPA and citizen litigants to efficiently reach agreement on schedules by which the agency will fulfill its rulemaking obligations and that also tilt the playing field in the favor of industry.
For example, the directive requires that EPA seek concurrence from regulated industry before agreeing to any settlement, but includes no reciprocal requirement to seek input from the communities and individuals who are suffering harm from the pollution at issue. Similarly, the directive requires the EPA to try to avoid paying fees for the attorneys with whom it is settling.
This will deter public interest nonprofits, on whom the public often relies in these actions, from seeking to protect human health and the environment, but have little effect on private industry paying a law firm.