“The days of regulation through litigation are over,” said EPA Administrator Scott Pruitt. “We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle.”The EPA explained how these "sue and settle" practices worked:
Over the years, outside the regulatory process, special interest groups have used lawsuits that seek to force federal agencies – especially EPA – to issue regulations that advance their interests and priorities, on their specified timeframe. EPA gets sued by an outside party that is asking the court to compel the Agency to take certain steps, either through change in a statutory duty or enforcing timelines set by the law, and then EPA will acquiesce through a consent decree or settlement agreement, affecting the Agency’s obligations under the statute.These practices bypassed the required processes for regulatory changes, resulting in regulatory overreach without the required input from the public and regulated community that is required by law:
More specifically, EPA either commits to taking an action that is not a mandatory requirement under its governing statutes or agrees to a specific, unreasonable timeline to act. Oftentimes, these agreements are reached with little to no public input or transparency. That is regulation through litigation, and it is inconsistent with the authority that Congress has granted and the responsibility to operate in an open and fair manner.
“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.Administrator Pruitt laid out eight specific practices that will now be used by the EPA to "increase transparency, improve public engagement, and provide accountability to the American public when considering a settlement agreement or consent decree." As legal scholars Hans von Spakovsky and Rob Gordon point out, these are the types of changes are needed across the Executive Branch to undo the regulatory overreach that was pervasive under President Obama:
Congress could, and should, make such improvements permanent. These types of changes are needed not just at the EPA, but at every federal agency — including the Fish and Wildlife Service — to prevent the abuse of power perfected by the Obama administration.We thank Administrator Pruitt for taking this vital step towards restoring the rule of law and reversing eight years of regulatory overreach.