The EPA has issued a directive limiting the sue and settle practice.
The United States Environmental Protection Agency (EPA) has traditionally allowed suits regarding non-discretionary statutory deadlines brought against the Agency by environmental advocate groups to be settled relatively quickly.
The EPA, environmentalists, and both Democrats and Republicans, all claim the practice is abused. An article in Energy & Environmental Law Blog by Gerald George outlines the steps “EPA Administrator Pruitt” has taken to eliminate these abuses. Mr. Pruitt’s actions are being severely criticized by environmentalists who claim the revised rules make it more difficult for plaintiffs to file suits against the EPA.
“Loosely defined, ‘sue and settle’ is a pejorative description used by the political party out of power to complain that the incumbents roll over for friends who file suits challenging unfavorable regulatory or statutory provisions.” As Mr. George notes, there is some truth to this.
Mr. Pruitt’s memo authorizes the creation of “consent decrees and settlement agreements governing agency actions, including attorneys’ fees paid; notifying regulated parties and states of such citizen suits when filed, with various provisions to allow such parties to participate in negotiations and litigation.”
The last provision limits the right of “interested parties to participate in suits related to statutory deadlines.”
The memo also states that attorney’s fees with not be awarded to the prevailing party “as part of any settlement” because, according to Mr. Pruitt, there is no “’prevailing party.”
The intent of this directive is to limit unnecessary attorney’s fees. Environmentalists fear this will curtail their ability to litigate.
The author argues that the procedures outlined in Mr. Pruitt’s memo are reasonable and fair if they are administered in an “even-handed” manner.
Mr. George believes the real reason the EPA does not meet its statutory deadlines is that it is drastically underfunded and therefore understaffed. Memos will not resolve these issues. Only increased funding by Congress can do that.
Trump Track: EPA Sue and Settle Fix? Gerald George, Energy & Environmental Law Blog, Oct. 18, 2017.