Feb 20, 2014 - 3:30pm

EPA Misses Key Concerns Over Sue and Settle Secrecy


Former Senior Vice President, Environment, Technology & Regulatory Affairs

We are appreciative of the fact that on EPA’s blog the agency’s General Counsel explains the agency’s justification for its involvement in Sue and Settle agreements with private parties that result in the lodging of consent decrees with courts without prior notice given to affected parties such as states.  Unfortunately, EPA’s defense of its actions misses the key concerns over the secrecy surrounding this process and how private parties now essentially control EPA’s agenda priorities.  Those concerns are:

  1. The consent decrees that the private party and EPA file with the court are completely secret until presented to the court for an order sought by the private party.  The General Counsel writes: “…our system of government best operates, with the watcheye of an engaged citizenry cast upon government.”  The U.S. Chamber agrees with EPA’s statement, but in the Sue and Settle context EPA refuses to inform the public prior to entering into final agreements that are the key to subsequent agency actions.  To achieve real public involvement EPA needs to provide the public at least 30 days notice of the filing of the Consent Decree. By doing so, the “watcheye of an engaged citizenry” will give that citizenry some realistic chance to be engaged.
  2. EPA proposes over three hundred rules a year.  Therefore, when EPA enters into a consent decree, it promises to the private parties it settles with that the agreed action will be given priority over all other rules.  This occurs because the consent decree places agency action squarely under the jurisdiction of the federal court issuing the order.  The impact of Sue and Settle means that the priorities of the plaintiff become EPA’s priority and failure to undertake the actions ordered by the court carries serious consequences.
  3. The General Counsel states that EPA doesn’t choose which parties sue it.  While this is true, the agency certainly does choose whether or not it will defend itself against lawsuits and the circumstances under which it will enter settlement.  It is telling when EPA readily chooses to settle with some private parties while at the same time actively seeking to block others from participating in settlement negotiations.
  4. The General Counsel asserts that settlements save money and are more efficient than litigation.  Again, this is true in most cases.  But when the agency enters into secret agreements to take agency action while excluding affected parties, the resulting rules are often rushed, sloppily written, and so flawed that years of litigation are needed to correct them.  The initial “efficiency” of crafting such an agreement without the involvement of other parties (such as states) is outweighed when the agency writes bad rules which the courts ultimately have to spend years trying to fix.
  5. The General Counsel argues that EPA never actually agrees to the specific content of rules through settlement negotiations.  We disagree.  Not only does the agency agree to issue rules with content that is often specifically the subject of the lawsuit against the agency (e.g., the agency must take a specific action), but the agency agrees to take the action on a specific timetable that is often not achievable.  This is a recipe for private groups to take effective control of an agency’s agenda and priorities.
  6. Finally, the General Counsel states that the Sue and Settle controversy fails to mention the challenges against EPA brought by industry.  The lack of mention stems from the fact that industries’ challenges are typically to EPA’s final rules. These types of challenges must be filed in public, fully briefed and argued in public before an appellate court.   Unlike the public involvement in cases involving final rules, Sue and Settle cases are brought in trial court, allowing the parties to settle secretly with private groups without any notice to the public before filing a proposed consent decree with the court.

The Chamber’s report: “Sue and Settle: Regulating Behind Closed Doors” documents EPA actions over the last five years.  Bills have been introduced in both the House and the Senate, and the Chamber will continue to urge Congress to pass this important legislation.

About the Author

About the Author

Former Senior Vice President, Environment, Technology & Regulatory Affairs

Kovacs is the former Senior Vice President for the Environment, Technology & Regulatory Affairs at the U.S. Chamber of Commerce.