(Quin Hillyer, Liberty Headlines) In a major blow against what conservatives long have called an abusive and lawless practice, Environmental Protection Agency Administrator Scott Pruitt on Monday ordered his personnel to end an (il)legal strategy known as “sue and settle.”
“The days of regulation through litigation are over,” said Pruitt, who in his earlier role as attorney general of Oklahoma had fought court battles, some of them quite successful, against the Obama Administration’s “sue and settle” (henceforth, “S&S”) practices.
The Obama team, especially at EPA, had used S&S as a backdoor way to impose regulations not clearly intended by Congress – all without conducting the usual, open-to-the-public, rule-making process otherwise required by law.
The way it worked under Obama: Some progressive pressure group seeking new regulations or a new interpretation of existing regulations would, in effect, arrange in advance with EPA bureaucrats to sue the EPA to force it to adopt the new rules. Rather than fight in court, the EPA would almost immediately “settle” the suit on terms favorable to the leftist group and, via a court-ratified “consent decree,” begin applying the new rules the leftists demanded.
“No government agency should collude with special interest groups to redefine its priorities through covert consent decrees,” said Republican Rep. Doug Collins of Georgia, who is chief sponsor of the Sunshine for Regulatory Decrees and Settlements Act, which he says would codify Pruitt’s action into law. “The EPA’s decision to crack down on this practice will give Americans back their right to know about and respond to federal rulemaking.”
Unlike ordinary regulatory practices, these consent decrees could take effect without the ordinary process requiring advance publication of the proposed rules change, public comment thereon, and the ability for opponents of the change to demand further administrative or judicial review.
Sometimes the “settlements” involved government cash payments to the eco-groups themselves, thus bank-rolling their leftist agendas.
The U.S. Chamber of Commerce found in 2012 that the EPA used S&S via anti-urban-haze regulations to impose billions of dollars of costs on various states just to implement the new rule, not to mention how much it would cost private businesses to comply. (The Chamber said the cost to Pruitt’s Oklahoma, for example, would be $282 million per year.)
In 2014, Heritage Foundation legal scholar Andrew Grossman cited the Chamber’s report listing ten separate, hugely costly S&S agreements in the course of a lengthy legal analysis of his own on the subject. Grossman described at length one of the rules, the MACT (maximum achievable control technology) standard for public utilities, that was requiring compliance costs of $9.6 billion annually.
Pruitt’s directive changes all that.
As the EPA press release described it on Monday, “’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. With today’s directive, Administrator Pruitt is ensuring the Agency increase transparency, improve public engagement, and provide accountability to the American public when considering a settlement agreement or consent decree.”
In place of S&S, Pruitt’s new directive requires his agency to take at least 8 different steps, if confronted by a lawsuit aimed at a regulatory end-run, to ensure that the public has ample opportunity to review and comment on the changes being demanded.
Leftist eco-groups, of course, won’t take this lightly, and are expected themselves to sue to try to block Pruitt’s elimination of their own sham lawsuit practices. As Fox News reported, for example, “The Sierra Club on Monday retweeted an environmentalist who predicted: ‘Scott Pruitt will be spending a lot more of your taxpayer dollars defending his inaction in court.’” Also, Sierra Club Environmental Law Program Director Pat Gallagher promised to hold Pruitt and his “polluter cronies… accountable in court.” The group, in a press release, called S&S a “myth” and Pruitt’s decision “an attack on the enforcement of environmental law.”
At Talking Points Memo, writer Cameron Joseph put the new directive in a sinister light: “Combined with measures to slash staff, a pattern of issuing fewer and lighter fines, and the rollback of Obama-era rules that crack down on greenhouse gas emissions from power plants to mitigate the effects of climate change, Pruitt’s latest move is part of an overall shift at Trump’s EPA that’s radically more friendly to big business and hostile towards environmental groups.”
Indeed, moderate and conservative business-friendly outfits were quite pleased with Pruitt’s announcement. The Energy and Environment Legal Institute, for example, released a statement saying Pruitt’s directive will help the Trump Administration “save taxpayers millions in court costs and regulatory headaches… [and] improve the lives of all Americans by removing the heavy hand of government from their daily lives.”
Other agencies and departments also used S&S tactics in conjunction with other outside interest groups, not just environmental ones. The Washington Examiner reports that Attorney General Jeff Sessions appears keen to stop the practice government wide, and Pruitt himself said that “other agencies are taking notice as well.”
Sen. Ted Cruz has been pushing for Rep. Collins’s Sunshine for Regulatory Decrees and Settlements Act to move forward in the House and Senate.
“I commend Administrator Pruitt for his leadership on this issue and ending the practice of regulation through litigation,” Cruz said in a statement.