EPA Issues Directive Protecting Against “Sue and Settle”

This morning, Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a directive designed to end the practice known as “sue and settle.” The agency-wide directive requires the EPA to:

• Publish any notices of intent to sue the agency within 15 days of receiving the notice;
• Publish 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;
• Reach out to and including any states and/or regulated entities affected by potential settlements or consent decrees;
• Publish 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 forbid the practice of entering into any consent decrees that exceed the authority of the courts;
• Exclude attorney fees and litigation costs when settling with those suing the agency;
• Provide sufficient time to issue or modify proposed and final rules and take and consider public comment; and
• Publish any proposed or modified consent decrees and settlements for 30-day public comment and provide a public hearing on a proposed consent decree or settlement when requested.

Manufacturers have long sought greater transparency and public participation in the settlement process. In fact, we requested a great deal of this relief four and a half years ago in an April 2013 letter to then-EPA Administrator Gina McCarthy. As the entities primarily regulated by these settlement agreements and consent decrees, it is simply not fair that manufacturers are regularly left in the dark as the EPA and other non-regulated entities work out the terms of our regulation behind closed doors. Allowing an open, transparent settlement process that abides by the law is the right policy, and we’re grateful to Administrator Pruitt for today’s action.

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Ross Eisenberg

Vice President at National Association of Manufacturers

Ross Eisenberg is vice president of energy and resources policy at the National Association of Manufacturers (NAM). Mr. Eisenberg oversees the NAM’s energy and environmental policy work and has expertise on issues ranging from energy production and use to air and water quality, climate change, energy efficiency and environmental regulation. He is a key voice for manufacturing on Capitol Hill, at federal agencies and across all forms of media.

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