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Eye on the EPA: Transparency Request #5, Share 'Intent to Sue' Notices with the Public
April 26, 2013

Lifting the Veil of Secrecy

Following the nomination hearing for Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA), the EPW Republican Senators reiterated five concerns they have with the Agency and the expected responses, in order to ensure that transparency is more than a buzzword. The Senators hope to restore public confidence that EPA will stop undermining public trust behind a veil of secrecy. Below is a detailed explanation of the fifth and final request. Click here to read all five initial requests.

Transparency Request #5: That EPA make notices of intent to sue, petitions for rulemaking or new guidance tracked, listed, and publicly available on the Agency's website and is regularly updated.

1. That all petitions for rulemaking or the promulgation of guidance received by the Agency, including by the Office of the Administrator and/or by the Office of General Counsel be tracked, listed and made publicly available, including copies of the documents, via readily available links on the Agency's website. This information is to be regularly updated.

2. That all notices of intent to sue received by the Agency, including by the Office of the Administrator and/or by the Office of General Counsel be tracked, listed and made publicly available, including copies of the documents, via readily available links on the EPA website. This information is to be regularly updated.

3. If a citizens suit is brought against the Agency alleging that EPA failed to undertake a nondiscretionary duty or otherwise should engage in a rulemaking or other administrative action, and the Agency determines to undertake settlement negotiations with the plaintiff, then:

a. The Agency shall issue public notice of its intent to engage in settlement negotiations at least 30 days prior to the commencement of those negotiations; and,
b. The Agency shall include intervenors in any such negotiations.

Further, that the Agency in fulfilling the requirements of Section 113(g) of the Clean Air Act shall share all comments received on a consent order or settlement agreement with the presiding judge prior to the Agency certifying and agreeing to support any such consent order or settlement agreement.

Why Should EPA Share ‘Intent to Sue' Notices with the Public?

In recent years, EPA has used the so-called "sue and settle" technique to advance a radical environmental agenda. Far-left environmental groups will sue the federal government claiming that the government is not satisfying its regulatory obligations. Then behind closed doors, the groups and Administration officials will draft a settlement agreement without consulting affected parties. Once a judge approves the settlement, EPA and other agencies will move forward with implementing costly regulations that had been privately agreed upon with those far-left environmental groups.

EPW Ranking Member Vitter has repeatedly stated his concern over the substantial usage of these secretive tactics in numerous letters to the Administration and opinion editorials.

On April 2, 2013, Sen. Vitter and Sen. Jeff Sessions (R-Ala.), Ranking Member of the Subcommittee on Clean Air and Nuclear Safety, wrote to Gina McCarthy, nominee to head the U.S. Environmental Protection Agency, regarding the "Startup, Shutdown, and Malfunction" (SSM) rule proposed in response to a "sue-and-settle" agreement the EPA made with the Sierra Club in 2011.

In an April 9, 2013 letter to Sen. Vitter, Associate Administrator Arvin Ganesan wrote, "The EPA is committed to [providing, on a public website, all notices of intent to sue]," and that the EPA's publicly available website "is currently under construction... Going forward, newly received notices will be added on an ongoing basis each month."

While this is a necessary first step, EPA has yet to delve deeper into the issue of allowing impacted parties have a say in these "sue and settle" agreements. This is a critical change that the Agency must adopt.

Examples and the Costly Impacts of Sue-and-Settle

Regional Haze: States are supposed to regulate regional haze, however, EPA is usurping state control of the program, in an attempt to shut down coal-fired power plants. EPA and state officials disagreed over which emissions controls were required at a number of coal-fired power plants for compliance with the program. Environmental groups filed lawsuits alleging EPA failed to meet non-discretionary deadlines to act on the state SIPs. Rather than litigate these cases, EPA chose to settle and require FIPs several times more expensive than the state's SIPs. EPA's plan for Oklahoma will cost $1.2 billion more than the state's SIP. In Arizona, the Navajo Generating Station installed low NOx burners at a cost of $45 million; yet EPA's preferred SCR system will cost more than $700 million. In Wyoming, EPA's FIP is projected to impose $96 million per year in additional costs.

Cross State Air Pollution Rule (CSAPR): July 6, 2011 EPA finalized the Cross State Air Pollution Rule (CSAPR) requiring 27 upwind States to reduce SOx and NOx emissions that may contribute to downwind nonattainment for ozone and particulate matter. Setting a compliance deadline of just 6 months later (January 1, 2012) the final rule usurped cooperative federalism forcing Federal Implementation Plans (FIPs) on the States to comply with the cap established in their emission budgets. It also added several States to the rule which were not included in the proposal. In response to the rule multiple utilities announced in order to comply the closures of facilities and mining operations would be necessary. A study by Charles River Associates, based on the draft rule, estimated an increase in consumer power prices of as much as $514 million per year in 2012 and 2013. (On August 21, 2012, the D.C. Circuit issued a 2-1 opinion in EME Homer City v. EPA vacating the Cross-State Air Pollution Rule (CSAPR); January 24, 2013 U.S. Court of Appeals for the District of Columbia issued the order denying a rehearing); EPA petitioning for cert. to the Supreme Court.

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