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ICYMI: Vitter Asks EPA Counsel Nominee on Sue-and-Settle Suits
June 17, 2013


Vitter Sees Ozone 'Sue-And-Settle' Case As Test For EPA Counsel Nominee
By Anthony Lacey | June 14, 2013

Sen. David Vitter (R-LA), ranking member on the environment committee, is setting an early test for Avi Garbow's nomination to be the next EPA general counsel by asking him to support industry groups' intervention in an alleged "sue-and-settle" case in which environmentalists are trying to force swift issuance of a revised ozone air quality standard.

"I request you commit to ensuring that these parties have a seat at the table in any negotiations" over environmentalists' notice of intent to sue to force issuance of a new ozone standard, "or any related petition submitted in the future," writes Vitter in a June 14 letter to Garbow, currently deputy general counsel in the agency's Office of General Counsel (OGC).

Vitter's letter comes as industry groups are struggling to win the right to intervene in so-called sue-and-settle suits -- where EPA settles environmentalists' litigation by setting deadlines for new or pending rulemakings -- because courts have largely barred industry from intervening in such cases, finding that the setting of a schedule does not harm industry.

Most recently, the U.S. Court of Appeals for the District of Columbia June 11 reiterated that industry groups lacked standing to intervene in Defenders of Wildlife v. EPA, a case that the agency has agreed to settle by setting a deadline for considering whether to revise its effluent limit for power plants.

As a result of their difficulties in court, industry groups are increasingly turning to Congress to help them intervene in the suits and participate in the crafting of any settlements. They are urging Congress to back pending legislation that seeks to make it easier for industry to intervene in civil suits, participate in the crafting of settlements and allow for greater public comment, arguing that legislation is the "most effective" solution to the issue.

In addition to the pending legislation, some lawmakers like Vitter have also pressured administration nominees to ease industry's ability to intervene. Vitter, for example, has also pressed Gina McCarthy, the administration's nominee to lead EPA, to give industry access to pending notices of intent to sue and rulemaking petitions.

Vitter in the letter to Garbow says EPA has entered nearly 60 settlements with environmental "allies" that have led to "extraordinarily expensive" regulations. "The common feature between these agreements is the exclusion of parties who will ultimately bear the brunt of the regulatory mandates," writes Vitter. He reiterates a request made to McCarthy for EPA to allow industry groups to intervene in settlement talks before an agreement is reached.

"At this time, there is an opportunity for EPA to demonstrate its commitment to reform this practice" by granting a request from 12 trade associations to participate in talks between Earthjustice and EPA over the environmental group's notice of intent to sue the agency unless it issues revisions to its ozone standard, Vitter writes.

One environmentalist says Vitter's questions reflect a strategy to block President Obama's nominees. "Senator Vitter's thinly veiled threat to the nominee for EPA General Counsel, like the mistreatment of Gina McCarthy, confirms Republicans' cynical, political obstruction of the president's nominees, not based on their qualifications but instead due to ideological opposition to enforcing health, safety and environmental laws," the source says.

Ozone Petition
Vitter is urging Garbow to allow industry to intervene in any discussions over Earthjustice's March 13 notice of intent to sue EPA for failing to meet a Clean Air Act mandate to review its national ambient air quality standards (NAAQS) every five years.

EPA last revised the ozone NAAQS March 12, 2008, tightening it to 75 parts per billion (ppb) down from the 1997 limit of 80 ppb. The agency is working on a review of the 2008 limit but is yet to issue a proposal. Earthjustice notes that March 12, 2013, marked five years since the last standard review and therefore EPA is now violating the air law's five-year review mandate.

EPA's "Rulemaking Gateway" of pending regulations says the agency initiated its five-year review of the 2008 standard Oct. 2, 2008, with a proposed rule slated for publication in the Federal Register in January.

In request to a response for comment, an agency spokeswoman says, "EPA and its panel of independent science advisors are actively reviewing the latest science and data on ozone's impacts on public health and the environment. This scientific review of air quality standards is extensive, open and public. Upon completion of the scientific review, the agency will develop a proposal, which will also be subject to and open public comment process."

The environmentalists in their letter call for "immediate action" in issuing a proposed revised NAAQS, otherwise the American Lung Association, Natural Resources Defense Council and Sierra Club will file suit in the U.S. District Court for the District of Columbia. The notice of intent to sue, sent by Earthjustice's Paul Cort, hints at a willingness to avoid filing the suit by offering discussions to "explore possible options for resolving this claim short of litigation."

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