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Friday, 20 October 2017 06:03

EPA Threatens to Dramatically Reduce Lawsuit Settlements

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epa33Scott Pruitt wants to limit EPA lawsuit settlements. (Photo: mccready)

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In a few short months, EPA Administrator Scott Pruitt has proven that he will use every means at his disposal to swing a wrecking ball through environmental policy. Therefore, it may not be surprising that on October 17 the EPA issued a news release announcing that it will seek not to settle most lawsuits filed by environmental groups. According to the EPA release,

In fulfilling his promise to end the practice of regulation through litigation that has harmed the American public, EPA Administrator Scott Pruitt issued an Agency-wide directive today designed to end "sue and settle" practices within the Agency, providing an unprecedented level of public participation and transparency in EPA consent decrees and settlement agreements.

"The days of regulation through litigation are over," said EPA Administrator Scott Pruitt. "We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle."

Over the years, outside the regulatory process, special interest groups have used lawsuits that seek to force federal agencies – especially EPA – to issue regulations that advance their interests and priorities, on their specified timeframe. EPA gets sued by an outside party that is asking the court to compel the Agency to take certain steps, either through change in a statutory duty or enforcing timelines set by the law, and then EPA will acquiesce through a consent decree or settlement agreement, affecting the Agency’s obligations under the statute.

The directive does not rule out all settlements. It, however, creates an arduous process that will create multiple roadblocks to a third party suing the EPA for not doing its job of protecting the environment and people from toxic pollution and environmental degradation.

On October 18, Pat Gallagher wrote a pointed rejoinder to Scott Pruitt in the national magazine of the Sierra Club,

This week, Scott Pruitt and his polluter cronies are aggressively perpetrating the lie they call “sue and settle” as a way of refusing to enforce our nation’s critical environmental laws. On Monday, Pruitt announced that the Environmental Protection Agency would avoid settling lawsuits with public interest groups and instead would lean toward fighting cases in court. But don’t be fooled: This is a phony remedy in search of a problem to solve. 

It’s important to note from the start that the polluter-backed U.S. Chamber of Commerce report underlying Pruitt’s false rhetoric has been regularly debunked in the academic literature on the topic. As the Harvard Environmental Law Review concluded in its review of the topic: “This analysis reveals the current ‘sue-and-settle’ debate for what it is: a war of words relying on emotionally charged rhetoric to score political points."

Take, for example, the current EPA effort to issue a rule reversing what is known as the Clean Water Rule. In July, AlterNet posted an article that bluntly stated in its sub-headline, "Repealing the Clean Water Rule will make it easier for polluters to contaminate the water supply for millions of Americans":

Also known as the Waters of the United States (WOTUS), the Clean Water Rule puts limits on pollution in the wetlands, rivers and streams that feed the nation's larger waterways. Those limits are essential for protecting the safety of the drinking water on which millions of American rely.

The rule also safeguards those waters for swimming, fishing and other activities. In addition, the rule helps to maintain the biological integrity of those smaller waterways, in turn protecting wildlife by keeping aquatic ecosystems healthy.

When the rule was issued, the EPA and the Army Corps of Engineers resolved decades of legal debate among politicians, environmentalists and public health advocates, saying that smaller waterways across the nations—tens of millions of acres of wetlands and thousands of streams—actually qualify for legal protection under the Clean Water Act, the primary federal law that protects communities and ecosystems from water pollution. Since then, Senate Republicans have made several failed attempts to overturn the rule, arguing that the rule gives undue authority to the federal agencies. 

Now President Trump has made the GOP's wish a reality, by signing an executive order directing the EPA and the Army Corps to begin the process of repealing the Clean Water Rule, with the ultimate goal of completely eliminating it.

The advocacy group Public Employees for Environmental Responsibility sent out an email recently that noted how aggressive the EPA has been in reversing or attempting to rescind environmental protections, such as the Clean Water Rule:

Nor is climate science the only purge target in an administration rooted in alternative facts. To push forward with its plan to repeal the Obama Clean Water Plan (also known as WOTUS for Waters of the United States), Scott Pruitt decided to throw out detailed hyper-documented findings of more than a half-billion dollars in benefits for protecting just 3 to 5% more wetlands. Instead, Pruitt declares wetlands have no value. These guys are not just cooking books; they are burning books. Nor is climate science the only purge target in an administration rooted in alternative facts.

One must not forget that, as in the case of ensuring clean water, protecting the environment also means protecting the health of people. Doesn't this type of proposed rule reversal merit a lawsuit?

It is hard to believe that the EPA has been, for years, settling legal challenges without merit. The new Scott Pruitt policy will likely not only endanger the environment, but also all of us.