U.S. Environmental Protection Agency

A group of former Environmental Protection Agency lawyers sent a letter this week to Administrator Scott Pruitt, asking him to “revise” his October directive ending the agency’s “sue and settle” regulatory settlements with environmental groups.

Calling the directive “unfair, unrealistic, and ultimately counterproductive,” the former EPA attorneys said it was up to the agency to avoid litigation by meeting statutory deadlines and fulfilling regulatory duties, and that Pruitt’s directive would decrease transparency.

But Western elected officials pushed back against the lawyers’ claims, saying the balance of power in the “sue and settle” legal settlements resided with the environmental groups who abused the system for financial gain and were actually limiting government transparency in regulatory procedures.

“For eight years we saw how the EPA and liberal organizations ‘sue and settle’ to circumvent the rulemaking process and dramatically expand the scope of the EPA’s authority—costing the taxpayers $67 billion in new regulations,” Sen. Jim Inhofe (R-Okla.) told Western Wire. “I’ve seen this firsthand—in 2011, the EPA used a consent agreement stemming from court cases outside Oklahoma to overrule our own regional haze program and impose a costly federal plan on Oklahoma ratepayers.”

“Administrator Pruitt’s directive is an important step in moving the EPA back to its proper size and scope,” he said.

Inhofe released a report in 2015 when he chaired the Senate Environment and Public Works Committee that demonstrated what the report described as extensive communications between Obama administration officials and environmental groups, concluding that “collusion with outside environmental groups through the use of sue-and-settle tactics has cornered out public input in the rule making process.”

The report authors said they found that EPA repeatedly “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.”

“The EPA’s previous ‘sue and settle’ practices were heavily tilted toward rewarding extreme environmentalists and their over-litigious allies. Administrator Pruitt’s transparency-focused directive will do much more to protect the American taxpayer than the special interest cash cow settlements of the past,” Rep. Paul Gosar (R-Ariz.) told Western Wire.

When Pruitt first announced his directive last month, Gosar, Chairman of the Congressional Western Caucus, said EPA had traditionally “folded like a cheap suit” in its negotiations and legal settlements 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 in October.

“The days of regulation through litigation are over,” wrote Pruitt in his directive to EPA, who said he was seeking to end the way the practice was used to “circumvent the regulatory process set forth by Congress.”

“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.

A spokesman for Sen. John Barrasso (R-Wyo.) referred Western Wire to the Chairman of the Senate Environment and Public Works Committee’s previous statements in support of Pruitt.

“EPA Administrator Pruitt’s directive will increase transparency so that the agency makes policies that are fair and informed,” Barrasso said in a statement last month.

Late last month, career legal staff and EPA employee members of the National Treasury Employees Union (NTEU) submitted a letter, obtained by E&E News, to Pruitt expressing “deep concerns” with what they called “attacks on their integrity” as a result of Pruitt’s directive, specifically the charge of “collusion” between EPA staff and outside groups.

“While it is your prerogative to set the policy direction of the agency, it is not acceptable to falsely accuse your staff of unlawful or unethical behavior when it simply did not occur,” Joe Edgell, Senior Vice President and attorney-adviser for NTEU wrote to Pruitt.

EPA acting general counsel, Kevin Minoli, defended EPA Office of General Counsel (OGC) staff.

“EPA’s dedicated attorneys are among the best in the country, so those who say that being more transparent and increasing participation will make settlements impossible or result in losses in the courtroom have not met my legal team,” Minoli said.

Minoli also touted two new databases launched by EPA as the “first public facing” products of Pruitt’s directive.

Fig. 1

The first, a searchable database of 369 active environmental challenges against EPA (Fig. 1), includes 34 cases initiated and led by environmental activist groups like the Sierra Club, Natural Resources Defense Council (12), and the Center for Biological Diversity (18).

There are currently 15 consent decrees and settlement agreements in the second database, including a list of “future deadlines for EPA action, and brief descriptions of those deadlines.”

A Western Wire analysis of the “Attorney Fees and/or Costs Paid by the U.S. for this case” in the database showed $899,716 in current payments as of November 14, 2017, with $119,957 in attorney fees for a consent decree with the Sierra Club and another $165,000 for a settlement agreement with the Waterkeeper Alliance.

A further 129 complaints and petitions for review have been received by EPA since January 1, 2013, according to OGC.

“The heart of the directive speaks to transparency and the ability of those affected by litigation to be aware of it and, if appropriate, participate in it,” Minoli told E&E News.

Past agreements with previous administrations came under fire by critics as friendly litigation invited by EPA, with those opposed to the “sue and settle” practice viewing other agency actions as “at the behest of interest groups,” according to Barrasso.