U.S. Environmental Protection Agency

Environmental Protection Agency (EPA) Administrator Scott Pruitt halted the agency’s practice of engaging in “sue and settle” regulatory settlements with environmental groups, stopping what he called “regulation through litigation.”

Pruitt’s directive aimed at reclaiming the agency’s primacy and declining to defer to environmental groups on timelines for action, while also including broader input from the industries and companies being regulated.

“The days of regulation through litigation are over,” said Pruitt. These settlements worked to “circumvent the regulatory process set forth by Congress,” he said, and the EPA would no longer yield to environmental groups and their demands, including the practice of paying attorney’s fees to the groups upon settlement.

“In the past, the U.S. Environmental Protection Agency has sought to resolve litigation through consent decrees and settlement agreements that appear to be the result of collusion with outside groups. Behind closed doors, EPA and the outside groups agreed that EPA would take an action with a certain end in mind, relinquishing some of its discretion over the Agency’s priorities and duties and handing them over to special interests and the courts,” Pruitt wrote.

“‘Sue and settle’ cases establish Agency obligations without participation by states and/or the regulated community; foreclose meaningful public participation in rulemaking; effectively force the Agency to reach certain regulatory outcomes; and, cost the American taxpayer millions of dollars,” the EPA said.

Pruitt’s announcement comes three months after an “oral directive” from the administrator to curb the “sue and settle” policy, according to E&E News.

“It’s something that’s going to make a difference in how we do business as an agency going forward…making sure we don’t abuse the judicial process to engage in rulemaking,” Pruitt said after issuing the order.

“I am pleased with Administrator Pruitt’s memorandum today effectively ending the ‘sue and settle’ practice at the Environmental Protection Agency,” said Sen. Jim Inhofe (R-Okla.), calling the announcement a “win for transparency.” “For the past eight years, the EPA has used consent agreements to circumvent Congress, the Administrative Procedures Act and states’ authority, enacting federal policy behind closed doors,” he said.

As Chairman of the Senate Environmental and Public Works Committee in 2015, Inhofe released a report that detailed extensive communications between Obama administration officials and environmental groups, demonstrating “collusion with outside environmental groups through the use of sue-and-settle tactics [that] has cornered out public input in the rule making process.”

The report found that the “EPA rushed into a ‘sue-and-settle’ agreement with environmental activists groups such as the Natural Resources Defense Council (NRDC) and other environmental activists in 2010 to issue unprecedented carbon regulations with little regard to the technical, legal, and policy challenges that that these rules would present.”

Reaction to the announcement highlighted the lack of transparency from the EPA under the former administration.

“EPA Administrator Pruitt’s directive will increase transparency so that the agency makes policies that are fair and informed,” said Sen. John Barrasso (R-Wyo.), current Chairman of the Senate Committee on Environment and Public Works. The new policy would end the EPA practice of taking action “at the behest of interest groups,” he said.

“The Environmental Protection Agency should not make regulations by settling lawsuits behind closed doors. Under the last administration, the EPA advanced its political agenda by abusing its authority and leaving states and Congress in the dark. The public deserves to know how its government is operating,” Barrasso said.

According to the directive, among the new reporting and agency actions the EPA will now publish notices of intent to sue the agency within 15 days, reach out to states and regulated entities affected by potential settlements or consent decrees, forbid the practice of entering into any consent decrees “that exceed the authority of the courts,” and exclude attorney’s fees and litigation costs when settling with groups suing the agency

Rep. Paul Gosar (R-Ariz.), Chairman of the Congressional Western Caucus, said the EPA repeatedly “folded like a cheap suit” when it engaged with environmental groups. “For years, extremist special-interest groups have milked taxpayers for millions that they turned around and used to fund anti-business measures that killed jobs. Shamefully, the EPA often colluded with these groups and folded like a cheap suit,” Gosar said.

Across the West, Congressional members such as Rep. Liz Cheney (R-Wyo.), Rep. Markwayne Mullin (R-Okla.), and Rep. Greg Gianforte (R-Mont.) all praised what they called the transparency embedded within the agency directive, as well as the intent to protect taxpayers from payouts due to what Cheney called the “endless cycle” of lawsuits.