2013 Year End Review: Advancing the Dialogue on Sue and Settle
December 19, 2013

During 2013, the U.S. Senate Environment and Public Works (EPW) Committee Republicans and Ranking Member Sen. David Vitter (R-La.) have investigated the Administration's "sue and settle" strategy, which is used to coordinate with environmental allies on new rules and regulations while usually excluding the public and other interested parties. Both the U.S. Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife Service (FWS) within the Department of Interior have used this tactic to lock in the Agency's commitment to publish controversial regulations.

In addition to violating one of the fundamental principles embedded in the Administrative Procedures Act (APA), which ensures "public participation in the rulemaking process," the practice of "sue and settle" contradicts President Obama's directive that his "[e]xecutive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information."

EPA's Sue and Settle Practices

During the first term of the Obama Administration, EPA entered into more than 60 "sue and settle" agreements with environmental allies, including 34 lawsuits by Sierra Club, 20 by WildEarth Guardians and nine from the Natural Resources Defense Council (NRDC). Often, environmentalists are rewarded with their legal fees paid for by the American taxpayers. These agreements, and thus environmental activists, have effectively dictated EPA policy.

In order to better understand the problem, Senators Vitter and James Inhofe (R-Okla.), along with Rep. James Lankford (R-Okla.), Chairman of the House Oversight Subcommittee on Energy Policy, Health Care, and Entitlements, sent EPA a letter on April 29, requesting documents that refer or relate to the Regional Haze Program - one of the key examples of "sue and settle," as well as communications between environmentalists and EPA officials. Then, during confirmation proceedings for EPA General Counsel Avi Garbow, Ranking Member Vitter reiterated EPA's obligation to respond to this request in a June 14 letter. Following Garbow's confirmation, the Agency agreed to conduct a records search and has been producing documents on a sporadic basis.

In addition to seeking official records that could inform Congress on this practice, Sen. Vitter launched an investigation into EPA officials using personal email accounts to communicate with environmental groups to possibly circumvent federal transparency laws. The details of EPA's record keeping and email practices that advance such collusion were explained in a comprehensive EPW Republicans report entitled, "A Call for Sunshine: EPA's FOIA and Federal Records Failures Uncovered."

While the "sue and settle" practice reveals EPA's loyalty to some environmental groups, in multiple instances under the Clean Air Act, EPA has taken the practice to a new level by shutting out the states and circumventing the principle of "cooperative federalism." EPW Republicans provided a detailed account of EPA's efforts to abuse "cooperative federalism" through the practice of "sue and settle" in a Committee report released on October 31 entitled, "Neglecting a Cornerstone Principal of the Clean Air Act: President Obama's EPA Leaves States Behind."

One of the key concerns over "sue and settle" is the lack of public notice and opportunity for other interested parties to participate in the settlement agreements. Accordingly, in April, Vitter included reforms to the practice of "sue and settle" as one of his five transparency requests pursuant to EPA Administrator Gina McCarthy's confirmation process. As a result, in July Vitter got EPA to publish the Notice of Intent to sue and Petitions for Rulemaking upon receipt. Despite this clear step in the right direction, EPA continues to deny affected parties the right to engage in the negotiation process and has objected to a request to notify the public before initiating settlement negotiations. Thus, "sue and settle" remains a problem at EPA, and Vitter will continue efforts to restore public participation and transparency in the rulemaking process.

FWS's Sue and Settle Practices

In 2011, the FWS entered into a closed-door "sue and settle" agreement with two radical environmental groups that could force the listing of more than 250 species as threatened or endangered under the Endangered Species Act (ESA). Despite the fact that species that could be listed exist in all 50 states, the decision to enter into the settlement agreement was made without consultation of any state or local governments and without consultation of private property owners who will be forced to deal with the impact of a species listing on their lands.

EPW Republicans and Sen. Vitter have attempted to shine light on the agreement throughout 2013. On February 28, 2013, Vitter led a letter to the FWS requesting that they provide detailed documentation about the closed-door settlement agreement. After four months of silence from the Administration, EPW Republicans followed up requesting a response. When the FWS finally responded in September, their answers were less than comprehensive. Rather than fully responding to the Senators, the FWS hid behind a questionable interpretation of a District Court Rule.

This isn't the first time the FWS has provided less than thorough information. On February 1, Vitter led a letter signed by 23 Senators urging the FWS to do a full economic analysis when making a listing decision. Despite following up with the Office of Management and Budget in June to reiterate the need to do a full economic analysis, the Administration released a rule promoting a less thorough analysis in August. As noted by the Wall Street Journal, the rule "dilutes" the economic reports and allows the Administration to "hide the costs of these actions."

In 2014, EPW Republicans and Sen. Vitter will continue to hold the Administration accountable on the improper use of the "sue and settle" technique.

EPW Republicans has been releasing additional documents recapping the Committee's work during 2013 on various issues. See below for the list of the EPW Republicans 2013 Year End Reviews:

A Continued Commitment to Sound Science, Conservation, and Fishermen
The Hearings That Didn't Happen
Holding EPA Accountable for Clean Water Act Abuse
Working Toward a More Transparent EPA
The President's Climate Action Plan and Associated Executive Orders

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