A Dozen States File Suits for Documents Related to EPA’s “Sue and Settle” Tactic

Twelve attorneys general last week filed a lawsuit in federal court requesting for access to documents related to the Environmental Protection Agency’s (EPA’s) so-called "sue and settle" practice with advocacy groups.

The 12 states (Alabama, Arizona, Georgia, Kansas, Michigan, Nebraska, North Dakota, South Carolina, Texas, Utah, and Wyoming) led by Oklahoma allege in their complaint filed in the Western District of Oklahoma that the EPA employs the tactic as a way to settle lawsuits with environmental organizations, including Greenpeace, Defenders of Wildlife, WildEarth Guardians, and the Sierra Club, without allowing state involvement.

Under the "sue and settle" process, advocacy groups sue the EPA to issue a regulation, and during closed-door settlement discussions, the groups and the EPA agree to a timeline and the content of a new rule. Industry groups have argued that after an agreement has been reached, the EPA rarely modifies terms of the settlement agreement during the notice and comment period. "In some instances, the EPA entered a consent decree the same day a lawsuit was filed by the special interest group, suggesting prior knowledge," the states said in a joint press release.

"Out of the 45 settlements made public, the EPA has paid nearly $1 million in attorneys’ fees to the environmental groups, while also committing to develop sweeping new regulations. One EPA consent decree led to the EPA’s costliest regulation ever—the Mercury Air Toxics Standards (MATS)," they said.

The 12 states said they filed a Freedom of Information Act (FOIA) request in February seeking information between EPA officials and special interest groups concerning consent decrees that dictate how the EPA is to implement the Clean Air Act’s Regional Haze program in various states. The states also requested a fee waiver. “Ninety-two percent of the time EPA grants fee waiver requests from noncommercial requesters who are supportive of EPA’s policies and agendas, but denies a majority of fee waiver requests from noncommercial requesters who are critical of EPA,” the complaint states. “States properly asked for specific records … (and) EPA violated FOIA’s mandate.”

As law firm Bracewell & Giuliani points out , the Ninth Circuit this April haltered the "sue and settle" practice when it overturned a consent decree that the U.S. Forest Service, Bureau of Land Management, and U.S. Fish & Wildlife Service entered into with various advocacy groups. The court held that "a district court abuses its discretion when it enters into a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures."

On July 9, responding to a request made by Sen. David Vitter (R-La.), Acting EPA Administrator Bob Perciasepe said in a letter that the agency had committed to establish a website to post petitions for rulemaking received by the agency. That website is now live and tracks petitions received by the EPA starting at the beginning of this year. The EPA also created a new webpage that provides copies of notices of intent to sue the agency for failure to perform an act or duty required under statute.

Sources: POWERnews, Attorney General’s Office of Oklahoma, Bracewell & Giuliani, EPA

Sonal Patel, Senior Writer (@POWERmagazine, @sonalcpatel)

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