Goodlatte & Collins praise the end of ‘sue and settle’ at EPA

WASHINGTON, D.C. – Today, Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a directive and memorandum instructing the agency to take strong steps to help end abusive “sue and settle” tactics, which allow litigants to use the courts to force regulation prematurely without input from regulated parties.

The memo states, in part:

“Sue and settle…interferes with the rights of the American people to provide their views on proposed regulatory decisions and have the agency thoughtfully consider these views before making a final decision. By using sue and settle to avoid the normal rulemaking processes and protections, an agency empowers special-interests at the expense of the public and parties that could have used their powers of persuasion to convince the agency to take an alternative action that could better serve the American people.”

House Judiciary Chairman Bob Goodlatte (R-Va.) and Rep. Doug Collins (R-Ga.), chief sponsor of H.R. 469, the Sunshine for Regulatory Decrees and Settlements Act, which prohibits sue and settle tactics and ensures public input for regulations, released the following statements:

Chairman Goodlatte: “I commend EPA Administrator Scott Pruitt for his decision to help end the reprehensible practice of using ‘sue and settle’ tactics to regulate through litigation. This change in EPA policy represents a strong beginning to a much-needed return to transparency, due regulatory process, and respect for constitutional authority.

“The Administrator’s action commits EPA to adopt voluntarily many of the provisions in H.R. 469, the Sunshine for Regulatory Decrees and Settlements Act, which passed out of the House Judiciary Committee this year. Now that the EPA has taken this important step, Congress needs to do its part to make this statute’s reforms permanent for all federal agencies and for all future administrations. We need to ensure that the American people have an effective voice whenever agencies create regulatory policy, regardless of who is in the White House. I expect that the House will take swift action and pass Sunshine for Regulatory Decrees and Settlements Act soon.”

Rep. Collins: “No government agency should collude with special interest groups to redefine its priorities through covert consent decrees. The EPA’s decision to crack down on this practice will give Americans back their right to know about and respond to federal rulemaking, and I applaud Secretary Pruitt for taking this step today.

“I will continue working to snuff out back-room litigation that unfairly impacts our citizens. The EPA’s directive reflects the principles outlined in the Sunshine for Regulatory Decrees and Settlements Act, which would ensure that the sue-and-settle mischief we witnessed during the last administration would never again take hold in a federal agency.”

Background: The House Judiciary Committee approved H.R. 469 by a vote of 15-8 on July 12, 2017.

The Sunshine for Regulatory Decrees and Settlements Act specifically provides:

• Greater transparency. Agencies must publish sue-and-settle notices of intent to sue, complaints, decrees, settlements, and attorneys’ fee awards and report on them to Congress.

• Greater rights for regulated entities and the public. Agencies cannot propose sue-and-settle decrees and settlements to the courts until parties affected by the proposed regulations can intervene and participate in settlement negotiations and the proposed decrees and settlements are published for public notice and comment.

• Greater judicial scrutiny. Courts weighing proposed decrees and settlements must assure compliance with normal rulemaking procedures and account for agencies’ competing mandatory duties not within the litigation.

• Greater accountability. The Attorney General must certify to the court his or her approval of proposed decrees that convert discretionary authorities into mandatory duties.

• Greater flexibility for new administrations. Courts are allowed to review any new administration’s motion to modify a consent decree in light of changed facts and circumstances or competing duties.