EPA Announces Elimination of Sue & Settle Policy

The Environmental Protection Agency (EPA) announced on October 16 that it will no longer follow the Obama Administration “Sue & Settle” policy. The announcement serves as one more example of how current EPA leadership is working to untangle regulatory red tape.

This is a dramatic departure from past administrations and a positive change for the specialty chemical industry. Many “Sue & Settle” situations at EPA come from petitions filed by environmental advocates against rules industry supports. “Sue & Settle” has long been viewed as a way of interrupting or creating rulemakings through litigation. The specialty chemical industry is opposed to “Sue & Settle” because it disrupts existing rules and causes discontinuity in business planning.

“[EPA] 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,” said EPA Administrator Scott Pruitt. “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.”
EPA shared nine steps the agency will take when considering settlement agreements or consent decrees moving forward. These include:
• Publishing any notices of intent to sue the Agency within 15 days of receiving the notice;
• Publishing any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court within 15 days of receipt;
• Reaching out to and including any states and/or regulated entities affected by potential settlements or consent decrees;
• Publishing a list of consent decrees and settlement agreements that govern Agency actions within 30 days, along with any attorney fees paid, and update it within 15 days of any new consent decree or settlement agreement;
• Expressly forbidding the practice of entering into any consent decrees that exceed the authority of the courts;
• Excluding attorney’s fees and litigation costs when settling with those suing the Agency;
• Providing sufficient time to issue or modify proposed and final rules, take and consider public comment; and
• Publishing any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.
According to the Chamber of Commerce, from 2009 to 2012, EPA settled more than 60 lawsuits with outside groups, resulting in more than 100 new regulations. EPA’s shift in position on the issue ensures improved public engagement, increased transparency and accountability to the American public when considering a consent decree or settlement agreement.
SOCMA is supportive of EPA’s efforts on this issue because it will help maintain regulatory consistency. SOCMA is further committed to working with EPA on all issues related to the specialty chemical industry.
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