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Sue and settle: much kerfuffle about nothing

Photographic visualization of coal-fired pollution.
Photo by Jeff Swensen/Getty Images

The reader will likely not be surprised to learn that the United States Environmental Protection Agency (EPA) is anathema in certain quarters. At issue presently: a supposed-scourge known as “sue and settle.”

To EPA’s detractors*, sue and settle consists of a conspiratorial process where EPA – in cahoots with environmental advocacy groups – games the legal system to enact “stealth” regulations. The complained-of process starts with a citizen suit filed by environmentalists against EPA, alleging that EPA has failed to comply with its statutory duties under one of a number of federal environmental statutes (e.g. the Clean Air Act or Clean Water Act). Rather than fighting these suits in court, the story goes, EPA then knuckles under and agrees to a settlement agreement with the outside group suing it. Consequently, EPA is often required to devise, revise, or implement regulatory rule-makings to enforce the statute – on the terms requested by the environmentalists suing the EPA.

(*Short list: a group of 12 state Attorney Generals suing EPA to produce documents related to EPA’s settlement negotiations with environmental groups – which group includes Arizona; the U.S. House of Representatives; and the U.S. Chamber of Commerce.)

Conspiracy-minded critics further suggest that EPA meets behind closed doors with the very groups suing them prior to litigation being filed – agreeing ahead of time on the terms of the forthcoming settlement agreement. Alternatively, other quibblers find particular fault with EPA agreeing to pay plaintiffs' attorney fees following settlement – as it would be required to do had the plaintiff prevailed in court during contested litigation. Purportedly, EPA is engaged in a stealth campaign to fund environmental suits brought against it by pro-environmental legal advocates.

Citizen suit provisions in environmental law serve an essential purpose: ensuring that occasionally recalcitrant or heel-dragging agencies perform legally-required enforcement actions. Thus, where the law sets a certain standard that the government regulator is not meeting, then members of the public can compel the government to take the necessary measures to meet that standard.*

(*As an admittedly-wonky example: the Clean Air Act requires that states submit a state implementation plan (SIP) identifying how the state intends to attain/maintain compliance with the National Ambient Air Quality Standards; EPA is then required to review each plan to ensure consistency with the Clean Air Act. In practice, EPA has failed to complete this statutorily-required review for many SIPs. A citizen suit could appropriately be filed in such instances, forcing EPA to meet its statutory burden and approve or disapprove a certain SIP.)

Arguments alleging abuse of “sue and settle” tactics conveniently (and consistently) ignore two items: that EPA is only settling lawsuits to meet pre-existing,legally-binding obligations that were previously unmet; and that the cooperative federalism approach delegating enforcement of environmental law provisions to the states does not relieve the federal government of its duty to ensure that the states adhere to minimum standards of enforcement in exercising their delegated power. The goal being to prevent a race to the bottom where states set environmental standards low to attract industrial development at the expense of environmental quality.

As EPA General Counsel Avi Grabow explains, by settling citizen suits, EPA does not agree to undertake any regulatory action that it is not already compelled to do under law:

“A lawsuit does not add to, or take away from, EPA’s statutory obligations – while it may shine a spotlight on an area that was previously in the shadows, what it illuminates is nothing more than what Congress already required by law.” (emphasis added)

This point signals why sue and settle critics perceive sea changes in policy arising from citizen suit settlements: the historical failure of executive agencies to practically implement environmental laws consistent with their textual requirements. Take as an example the widespread practice of mountaintop removal mining in Appalachia. For some years, the US Army Corps of Engineers has granted permits allowing mining operations to bury mountain streams with mining spoil – a practice that is manifestly inconsistent with the Clean Water Act.*

(*Consider also ongoing violations of federal law such as Phoenix’s nonattainment of Clean Air Act NAAQS for PM-10 pollution covered previously in this space.)

In such instances, citizen suits are a necessary corrective to illegal conduct – not an easily-abused impediment to development. Where EPA determines that the case against it in such a suit is likely to prevail, it is manifestly reasonable that it would opt to settle out of court to avoid the even larger costs associated with going to trial.

While Oklahoma Attorney General Scott Pruitt and his 11 AG compadres from other states are correct in asserting that many federal environmental statutes delegate a primary enforcement role to state governments, this delegation of authority is not unlimited. In fact, statutes such as the Clean Air Act and Clean Water Act set minimum requirements that states must comply with in exercising their delegated authority. And EPA has a duty to ensure that the states meet these minimum requirements in their enforcement regimes. States may not cloak their failure to enforce laws in a sufficiently-protective manner behind the statutory grant of enforcement authority.

The U.S. Chamber of Commerce urges EPA to involve additional “interested parties” in its settlement negotiations – seemingly encompassing any party that may conceivably be affected by suits bringing the application of environmental law back into conformity with statutory commands. Such an approach, however, seems extremely likely to further drive litigation costs up – which in the context of suits against the federal government means larger costs to be borne by taxpayers. As courts have recognized, the legal question in citizen suits is often narrow – i.e., did EPA follow the law? If yes, potential intervenors have no cognizable grievance; if no, then EPA will be required to conduct a full rule-making. Which rule-making will provide ample opportunity for those wishing to intervene to interject their views into the process.

Broadly speaking, the purpose of US environmental law is to regulate development and industrial activity so that economic opportunity is harmonized with environmental protection. In the past, the scale has too often been weighted more heavily in favor of development and resource exploitation. Citizen suits provide a means to re-balance the scale so that environmental protection receives due consideration. Current critiques of the citizen suit process – including EPA’s prerogative to settle such suits when it is legally and economically prudent to do so – create an imaginary boogeyman while ignoring the actual specter of insufficient enforcement. With the myriad environmental problems the world faces today, there is little need to manufacture additional, illusory botherations.

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