Senate panel probes ‘sue-and-settle’ tactics’ impacts on policymaking

Environmental litigation settlements, which proponents say help the public make certain federal agencies are diligently implementing congressionally mandated regulations, actually sabotage sound policymaking, several witnesses told a US Environment and Public Works Committee subcommittee. But another said provisions allowing citizens to sue the government are an essential part of US environmental law and must be protected.

The Superfund, Waste Management, and Regulatory Oversight Subcommittee’s leaders were similarly divided at the Aug. 4 hearing. “These citizen suits are being used to perpetuate a ‘sue-and-settle’ process resulting in agencies to promulgate major regulations within an arbitrarily imposed timeline,” Chairman Mike Rounds (R-SD) said. “These agreements are often negotiated behind closed doors, with little to no transparency or public input.”

Ranking Minority Member Edward J. Markey (D-Mass.) said, “If we are going to look at the impact of litigation, then we have to look at all participants. In one corner, we’ve got multibillion dollar corporations suing to stop or stall environmental protections from taking effect…. In another corner, we have members of the public using the statutory rights that Congress gave them to hold agencies accountable and ensure environmental goals are met.”

Witnesses said environmental litigation settlements often shut out significant stakeholders. “The ‘sue-and-settle’ method by definition does not afford my state any input into the agreement, yet subjects us to the burden of satisfying the requirements of the agreement,” said Dallas Baker, Air Director at Mississippi’s Department of Environmental Quality.

“Adding to the frustration, the details and methodology used to arrive at the technical elements related to the settlement is often sealed by the courts,” he said in his written testimony.

Cutting corners

Kathleen Sgamma, vice-president of government and public affairs at the Western Energy Alliance in Denver, said the US Department of the Interior, Environmental Protection Agency, and other federal regulators cut corners by not providing the scientific support that statutes require to properly justify new regulations and show their benefits outweigh their costs.

“The agencies are also not following proper procedures,” she said in her written testimony. “Procedures are not just mere technicalities, but are designed as a check on agencies to ensure they are serving the public.”

Sgamma said a federal district court in Wyoming’s decision, in a suit WEA and the Independent Petroleum Association of America jointly filed, which prevented the US Bureau of Land Management from implementing its final hydraulic fracturing rule led to additional delays when BLM could not provide the administrative record to the court. “The record is a basic part of any rulemaking, and the disarray indicates BLM is overreaching,” she said.

The abuse of consent decrees in regulation raises a number of practical problems that reduce the quality of policymaking actions and undermine representative government, observed Andrew Grossman, an adjunct scholar at the Cato Institute. “In general, public policy should be made in public, through the normal mechanisms of legislating and administrative law, and subject to the give-and-take of politics,” he said in his written testimony.

“When, for reasons of convenience or advantage, public officials attempt to make policy in private sessions between government officials and (as is often the case) activist groups’ attorneys, it is the public interest that suffers,” Grossman said.

The real targets

A fourth witness, however, said in his written statement that criticism of environmental litigation settlements are simply attacks against the underlying environmental statutes.

“Complaints about the US Fish and Wildlife Service’s settlement of deadline litigation about listing endangered species are not at core complaints about the settlement, but rather, complaints by certain interest groups [which] object to a particular species being listed, even if the scientific evidence demonstrates that a listing is warranted,” said Justin Pidot, an associate professor at the University of Denver’s Sturm College of Law.

“In other words, there is nothing broken about environmental settlements,” he said. “There is no problem with settlement practices for Congress to fix. There is not record to substantiate claims that they are collusive. There is no record to substantiate claims that they enable agencies to avoid public participation. There is no record to substantiate claims that they enable private parties—environmental or industrial groups—to take over agencies.”

The fifth witness—J. Alfredo Gomez, Natural Resources and Environment Director at the Government Accountability Office—said that in a December 2014 report, investigators found that of the 32 major rules which EPA said it promulgated from May 31, 2008, to June 1, 2013, nine were issued following seven settlements in deadline lawsuits, all under the Clean Air Act. “None of the seven settlements included terms that finalized the substantive outcome of a rule,” he said.

Gomez said in his written testimony that deadline suit settlements’ impacts on EPA’s rulemaking priorities was limited primarily to a single office in the agency—the Office of Air Quality Planning and Standards—because most of the actions were based on Clean Air Act provisions for which that office is responsible. “These provisions have recurring deadlines requiring EPA to set standards and to periodically review—and revise as necessary—those standards,” he told the subcommittee.

Contact Nick Snow at nicks@pennwell.com.

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