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.
EPA’s Long-Standing Settlement Practices
Our major environmental laws, such as the Clean Air Act (CAA) and Clean Water Act, contain provisions that require EPA to act on schedules specified in the statutes. For example, the CAA directs the agency to update health-, science-, and technology-based standards on a mandatory periodic schedule, typically every 5 or 8 years. These reviews ensure that EPA’s CAA rules provide for a level of public health protection that reflects up-to-date developments in science and technology.
Congress viewed these obligations as so essential to protecting public health that it authorized any citizen to bring a lawsuit to compel the agency to act if EPA fails to meet its deadline to do so. Crucially, these citizen suit provisions allow the attorneys representing citizens to be reimbursed for the time they spend forcing the government to do its job.
EPA’s long-standing practice has been to settle citizen lawsuits. By establishing the schedule EPA will follow to carry out its obligation, settlement agreements limit costs and allow the agency greater opportunity to manage its workload. Reaching a settlement also benefits citizen litigants and their attorneys. It minimizes their expenditures of resources and energy, and it accelerates the remedy being sought: EPA’s commitment to follow a schedule. Ultimately, the agency’s settlement practice contributes to making the citizen suit provisions workable and holding EPA accountable to its statutory mandates.
Virtually all settlement agreements address i) the schedule the agency will follow in carrying out a rulemaking and ii) the subjects the rulemaking will address, not how EPA will address them. Settlement agreements do not bind the agency to reach specific conclusions in rulemakings nor do they limit stakeholders, including businesses potentially affected by the future regulations, from participating fully in the rulemaking process.
On Oct. 16, 2017, Administrator Pruitt issued a directive regarding settling litigation that is designed to make it difficult to hold EPA accountable. The directive adds a number of procedural hurdles that will make it harder for American citizens and their attorneys to efficiently participate and succeed in legal actions they take to compel the agency to meet its obligations. The new process also tilts 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 EPA to try to avoid paying fees for the attorneys with whom it is settling. This will deter public interest nonprofits from seeking to protect human health and the environment on behalf of the public, but it will have little effect on private industry paying a law firm.
The directive also makes numerous unfounded claims about what had been the standard settlement process. 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].”
This post was edited for clarity on Jan. 23, 2020.