By David Bookbinder

Just last month the Interior Department came up with a plan to limit the time and pages devoted to Environmental Impact Statements that would actually have environmental groups cheering. Now comes Environmental Protection Agency Administrator Scott Pruitt’s declaration that the days of “sue and settle” are over, which will have similarly counterintuitive results: Pruitt’s policy addresses a non-existent problem with a “solution” that actually reinforces the very features of those settlements he does not like.

But, as we have seen with global warming, facts simply do not matter to this Administration; the goal is to feed red meat to the base. Otherwise we have no explanation for this extremely counterproductive new policy.

Pruitt issued two documents on Monday; with his directive, he included a lengthy propaganda piece about how the EPA has been busy conspiring and colluding with environmental groups, using these settlements to undermine the rule of law, subvert the separation of powers (including a lengthy quote from the Federalist Papers). His case might have been more compelling had he nixed the rhetoric in favor of an example of any of the alleged abuses that so vex him.[1]

Before going any deeper, first some legal stuff. Lawsuits against the EPA can be divided into two baskets: purely procedural cases, where the EPA is sued in order to get it to do something Congress has told it to do, or substantive cases, which challenge EPA decisions. “Sue and settle” cases almost always fall into the first basket: Federal law requires the EPA to do something, but the agency has not done it.

Those procedural cases then break down into two categories. Sometimes Congress has set a “date certain” for the EPA to act, i.e., “No later than September 1, 2015, EPA shall . . . .”, or “Within 60 days of the Administrator doing X, he shall do Y.” These are called “mandatory duty” cases. Other times, Congress says, “EPA shall . . . ”, but does not provided a “date certain” by which the EPA must act. If Congress has not provided that deadline, then the Administrative Procedure Act allows courts to order agencies to perform duties that have been “unreasonably delayed.” These are referred to as “unreasonable delay” cases.

These procedural cases are settled via one of two mechanisms, a consent decree or a settlement agreement. They differ chiefly in how they can be enforced if (really, when) the EPA violates the terms. A consent decree is a court order incorporating the settlement between the parties, and thus can be enforced by the judge. A settlement agreement is not a court order, and thus the only remedy that the enviros have when EPA violates it is to restart the underlying litigation.

I’ve lost count of the number of times I’ve sued the EPA, including many unreasonable delay and mandatory duty cases. Despite his statements, presumably Pruitt knows that the Department of Justice settles mandatory duty cases because they are stone dead losers. It is hard to imagine a defense when the Clean Air Act says “[t]he Administrator shall promulgate such regulations no later than two years following the date of the enactment of this paragraph” but the EPA has failed to do so. Congress meant three years, not two? Congress didn’t enact that paragraph – someone slipped it into U.S. Code on the sly?

Unreasonable delay cases are far more difficult, because you have to convince a judge (or a three-judge appellate panel) that the EPA’s delay is “unreasonable,” and if there is one thing in Washington that everyone can agree on, it’s that bureaucrats are not only really good at not doing something, but they are the absolute, undisputed masters of justifying why they haven’t. And federal judges are notoriously loathe to crack the whip in the absence of that date certain. Knowing that, the EPA and the Justice Department simply do not settle those cases unless many years have passed and they are completely out of excuses. Thus, unless there are compelling reasons to do so, I won’t even consider an unreasonable delay case until at least a decade has passed since Congress told the EPA to do something.

If the EPA (and DOJ) do agree to settle, then the settlement has a schedule with dates for the agency to (1) propose a rule that Congress told it to promulgate, and (2) finalize that rule. The idea that the EPA uses such settlements to conspire with the enviros to do something it otherwise could not do is beyond absurd: If the EPA had already wanted to do such a rule, there is absolutely zero reason why it could not have done so, and on whatever schedule it chose. Nothing in any consent decree (issued by the judge as a court order) or settlement agreement (an agreement between the parties but not a court order) imposes any requirement on EPA that it did not already have authority to do on its own.

The idea that such settlements somehow circumvent “due process” or “the rule of law” is nonsensical.

Pruitt’s 10-point “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements , ” is a solution in search of a problem if there ever was one.

Items 1, 2, 4, and 8 require that the EPA publish in various forums (a) notices of intent to sue the agency, (b) complaints (or petitions for review), (c) a database of consent decrees and settlement agreements, and (d) notice of any proposed settlement or consent decree. Good idea – more transparency is better than less. Of course, the EPA already does some of these things (both by agency practice and by law).

Item 3: The EPA will promptly notify “any affected states or regulated entities” of the lawsuit. Also a fine idea, although I doubt that any such states or entities would not already be aware of the suit: Whenever an environmental group sues the EPA, the organization issues a press release, blasts it out over social media, and does its absolute best to garner all the publicity it can.

Item 3 goes on to say that the EPA will do its best “to achieve the participation” of the affected states/regulated entities in the negotiation process. Good luck with that; Judges are not fond of outsiders in negotiations if they are not parties to the litigation, since it just slows the process down. Bottom line: This will accomplish nothing but annoying judges and leading to fewer agreements and more litigation.

Item 5 provides that the EPA “shall not enter into a consent decree with terms that the court would have lacked the authority to order,” or enter into a consent decree or settlement agreement “that converts an otherwise discretionary duty of the Agency into a mandatory duty to issue, revise, or amend regulations.” Note to the Administrator: This has been the official policy of the Justice Department for more than 30 years, since Attorney General Edwin Meese issued the eponymous “Meese Memo” in 1986.

Where Item 5 shows a tenuous grasp of the federal litigation process, Item 6 demonstrates truly stunning ignorance of the law. It provides that, “If EPA agrees to resolve litigation through a consent decree or settlement agreement, and therefore there is no ‘prevailing party,’ then the Agency shall seek to exclude the payment of attorney’s fees and costs,” and will “not seek to resolve the question of attorney’s fees and costs ‘informally.’”

For decades, the Supreme Court has defined “prevailing party” as a plaintiff who obtained any of the relief sought, whether by final judgment or settlement. See, e.g., Maher v. Gagne, 448 U.S. 122, 129 (1980) (“We also find no merit in petitioner’s suggestion that respondent was not the “prevailing party” within the meaning of § 1988. The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees.”)

Thus if the enviros get any of the relief they are seeking (which is why they would sign a settlement), they are by definition prevailing parties. But even more wonderful than that is the idea that the EPA will not negotiate attorney’s fees, which means that the plaintiffs will ask the court to award them. Not only will the court do so because the plaintiffs are the prevailing parties, but (and I have personally experienced this on more than one occasion) few things piss off busy federal judges more than having to decide fee motions. Refusing to negotiate and thus making more work for the judge who is deciding the fee petition (which, of course, includes the time spent in litigating the fee petition) must have DOJ lawyers cringing.

Bottom line for Item 6: More fees for the plaintiffs, and judges who are really angry at the EPA for wasting their time.

Item 7 provides that any agreement regarding a deadline to issue a final rule must include adequate time for modifying a proposed rule, for providing public notice and opportunity to comment, and for considering those comments. Makes sense, but since I’ve never seen an agreement that did not provide adequate time for these things, this item seems unnecessary.

In Item 9, Pruitt reserves to himself the right to allow the EPA to deviate from these instructions, but then pompously concludes that, “In no circumstance, however, will I permit the agency to violate its statutory authority or upset the constitutional separation of powers.”

Finally, Item 10 is legal boilerplate about none of this creating any rights enforceable by law, etc., etc.

In short, aside from a few additional (and welcome) measures making notice letters, complaints, and consent decrees more accessible, all of these measures are either duplicative, irrelevant, or guaranteed to generate more attorney’s fees for environmental attorneys while seriously annoying federal judges. But for Scott Pruitt, they’re clearly worth it in order to pander to the base.

[1] Others have tried to find some, e.g., R Street’s assertion that “during the Obama years, ‘sue and settle’ became one of the primary avenues to formalize major regulations, including the Clean Power Plan’s proposed constraints on carbon emissions as well as recent mercury and air-toxin standards.” Really? In 2006, EPA refused to regulate CO2 from power plants because CO2 was not a “pollutant.” After Massachusetts v. EPA held that CO2 was a pollutant in 2007, I’m deeply curious what alternative R Street thinks EPA had aside from agreeing – three years later – to a CO2 rulemaking schedule (which, by the way, it repeatedly violated).

The Mercury and Air Toxics Rule is an even more bizarre example. Following the EPA’s December, 2000 determination that coal-fired power plants were a source of mercury and other hazardous air pollutants (65 Fed. Reg. 79,825), the Clean Air Act required the EPA to issue final emission standards by Dec. 20, 2002. See 42 U.S.C. § 7412(c)(5). The rulemaking schedule R Street is presumably referring to was part of a consent decree entered into Oct. 22, 2009. I’m equally curious about what defense R Street thinks EPA could have offered in 2009 in terms of a 2002 mandatory duty deadline.

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