Events and News

EPA to end "Sue and Settle" Practice

October 31, 2017

EPA Administrator Scott Pruitt announced on October 16, 2017 that EPA would end the practice of regulation through litigation to resolve legal challenges to Agency actions and inactions known as “Sue and Settle.”  Administrator Pruitt indicated that the “Sue and Settle” process “undermines the fundamental principles of government,” including:  “(1) the importance of process, (2) adherence to the rule of law, and (3) the applicability of cooperative federalism.”

According to Mr. Pruitt, when EPA uses a consent decree or settlement agreement to bind the Agency to proceed with a rulemaking with a certain end in mind on a negotiated schedule, this process violates the Administrative Procedure Act (APA) governing notice and comment rulemaking.  The “Sue and Settle” process also cedes to courts the statutory authority that Congress granted to EPA in implementing statutory mandates.  Finally, it also excludes affected states and tribes, regulated communities, and other interested stakeholders from the rulemaking process.

In order to resolve legal challenges, EPA must adhere to the applicable laws for developing rulemakings and provide adequate time for meaningful public participation in the rulemaking process.  Mr. Pruitt outlined the following steps to ensure appropriate transparency and public participation when entering into consent decrees and settlement agreements.

  • Publish all notices of intent to sue within 15 days of receipt.
  • Publish online all complaints or petitions for review within 15 days of receipt.
  • Notify directly all affected states and regulated entities of a complaint or petition for review and to take all appropriate steps to include those parties in the consent decree and settlement agreement negotiation process.
  • Within 30 days publish an online list of all consent decrees and settlement agreements that continue to govern Agency actions with a brief description of each one.
  • EPA shall not enter into any consent decree or settlement agreement with terms that the court lacked the authority to order through litigation.
  • EPA shall seek to exclude the payment of attorney’s fees and court costs to any plaintiff or petitioner.
  • Any deadlines in consent decrees and settlement agreements must provide adequate time to modify a proposed rule, provide adequate notice and comment of the modified proposal and allow time for meaningful Agency consideration of comments received on the modified proposal.
  • EPA shall provide public notice of any proposed consent decree or settlement agreement and allow time for meaningful comment and Agency consideration of those comments.

Some of these new policies will make it easier for interested parties to monitor legal challenges of EPA actions and inactions, and to have some input into negotiated settlements.  On the other hand,  it may be more difficult for industry groups to enter into favorable settlements with EPA resolving legal challenges.  Nonetheless, through increased transparency and public participation in establishing new regulatory requirements, EPA can ensure that its regulations have been thoughtfully developed in a forum that is open to all.  The EPA memorandum and directive promoting transparency and public participation in consent decrees and settlement agreements are available on the EPA website at https://www.epa.gov/newsroom/directive-promoting-transparency-and-public-participation-consent-decrees-and-settlement.  

If you have any questions or would like additional information on this issue, please contact Jeff Hannapel with the AFS Washington office at jhannapel@thepolicygroup.com.