Sue and Settle: Regulating Behind Closed Doors

Published

March 06, 2018

What is Sue and Settle?

"Sue and Settle" refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process.

The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties. These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.

As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups. These cases resulted in settlement agreements and EPA publishing more than 100 new regulations - including the Clean Power Plan.

UPDATE – Sue and Settle Practice to End: On October 16, 2017, EPA Administrator Scott Pruitt issued a directive to end “sue and settle” practices within the EPA. The directive and accompanying memo includes new policies and procedures to increase transparency, public engagement, and accountability. Major changes include providing advance notice to the public of any notice of intent to sue or proposed settlement agreement, allowing the public to weigh in on proposed or modified consent decrees and settlements, and to exclude attorney fees and litigation costs when settling with suing parties. The directive incorporates recommendations and research conducted by the U.S. Chamber of Commerce, which can be found in the May 2017 “Sue and Settle Updated: Damage Done 2013-2016” report.

Database of Settlements:In August 2017, the U.S. Chamber of Commerce received a Freedom of Information Act request response from the Department of Justice's Environmental and Natural Resources Division with a database listing all Clean Air Act, Clean Water Act, and Endangered Species Act settlements between January 20, 2009 and January 19, 2017. The database of settlements, which is accessible HERE, is divided in three sections: (1) Environmental Defense, (2) Environmental Enforcement, (3) Wildlife. Additionally, in October 2017, the Chamber received a FOIA request response from the EPA including Clean Air Act and Clean Water Act settlement agreements and consent decrees from between 2015 and 2016.

Recent Notices of Intent to Sue on EPA's Website

8/31/18: CWA, Center for Biological DiversityAlleging failure to perform a non-discretionary duty under CWA section 303(d) to identify impaired Oregon waters after EPA's partial disapproval of Oregon's 2012 303(d) list, as required by section 303(d)(2) of the CWA, 33 U.S.C. § 1313(d)(2).

8/9/18: RCRA, Waterkeeper Alliance, Inc. ("Waterkeeper Alliance"), Local Environmental Action Demanded ("LEAD Agency"), and Sierra ClubNotice of intent to file suit against the EPA under RCRA.

7/19/18: CAA, Iowa Citizens for Community ImprovementAlleged unreasonable delay in establishing emission factors for the purpose of estimating emissions of volatile organic compounds from Animal Feeding Operations

7/06/18: CAA, National Park Conservation Association, Medical Advocates for Healthy Air, Committee for a Better Arvin and Committee for a Better ShafterFor failure to issue “findings of failure to submit” addressing the State of California’s failure to develop and submit at least four separate nonattainment State Implementation Plan revisions of the 1997, 2006, and 2012 national ambient air quality standards for fine particulate matter in the San Joaquin Valley, California.

7/03/18: CWA, Idaho Department of Environmental QualityAlleged failure to perform a non-discretionary duty under CWA section 303(c) to approve or disapprove site-specific water quality criteria downstream from the Hells Canyon dams complex.

6/26/18: CAA, Natural Resources Defense Council; Environmental Defense FundFailure to implement or enforce the Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills, 8 I Fed. Reg. 59,276 (Aug. 29, 20 I 6)