On October 16, 2017, EPA Director Scott Pruitt issued a memo and directive to end the practice referred to as “sue and settle.” Director Pruitt referred to the practice as “regulation through litigation,” which involved special interest groups suing EPA and entering into consent agreements requiring EPA to take regulatory action on the special interest groups’ timeline. Director Pruitt provided eight changes to the process of considering a consent decree or settlement agreement.
EPA Director Pruitt’s revisions to how EPA handles consent decrees or settlement agreements are:
- Publishing any notices of intent to sue the Agency within 15 days of receiving the notice;
- Publishing any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court within 15 days of receipt;
- Reaching out to and including any states and/or regulated entities affected by potential settlements or consent decrees;
- Publishing a list of consent decrees and settlement agreements that govern Agency actions within 30 days, along with any attorney fees paid, and update it within 15 days of any new consent decree or settlement agreement;
- Expressly forbidding the practice of entering into any consent decrees that exceed the authority of the courts;
- Excluding attorney’s fees and litigation costs when settling with those suing the Agency;
- Providing sufficient time to issue or modify proposed and final rules, take and consider public comment; and
- Publishing any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.
Memo from EPA Administrator Scott Pruitt to EPA Managers: Adhering to the Fundamental Principles of Due Process, Rule of Law, and Cooperative Federalism in Consent Decrees and Settlement Agreements, October 16, 2017