A new directive handed down Oct. 16 by Environmental Protection Agency Administrator Scott Pruitt pledges to put an end to the controversial practice of settling lawsuits with special interest groups behind closed doors, often while paying their attorneys’ fees.
These so-called “sue and settle” practices long have been criticized by businesses and conservative groups as a way to circumvent the normal regulatory process. Over its eight years, the Obama administration’s EPA chose not to defend itself in more than 100 lawsuits brought by special interest advocacy groups and paid out $13 million in attorneys’ fees in such cases.
Pruitt has had the tactic in his sights since his days as Oklahoma’s attorney general, when he sued the EPA in federal court more than a dozen times. In a letter this week to EPA managers, he said the practice “risks bypassing the transparency and due process safeguards enshrined in the Administrative Procedure Act and other statutes.” He also called it “regulation through litigation” and an “abusive” policy, in part because it excludes state involvement in any settlement between the EPA and private litigants.
The practice has not been confined just to the Obama administration, as the Bush EPA settled 64 cases over its two terms in office. But during the Obama years, “sue and settle” became one of the primary avenues to formalize major regulations, including the Clean Power Plan’s proposed constraints on carbon emissions as well as recent mercury and air-toxin standards.
Pruitt’s directive calls for improved transparency around litigation, with all potential settlement agreements open to a 30-day public comment period. The directive also calls for publishing attorneys’ fees, a break from the Obama administration practice of agreeing to fees “informally.” Pruitt also has instructed the EPA to reach out directly to states and regulated entities that would be affected by any given consent decree.
Given the litigiousness of environmental policy, it’s easy to see how the “sue and settle” process could be attractive for the agency. But as Pruitt rightly suggests, the process had become a way to circumvent the full regulatory process, which can take years, and essentially gives the executive branch control to shape legal settlements in complaints that are never even heard by the courts.
Given the Obama administration’s clear tendency to replace legislative compromise with “phone and a pen” executive action, there is little doubt the “sue and settle” tactic was being abused in ways that had not be foreseen when the practice began. Good riddance.
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