EPA’s Administrator, Scott Pruitt, today took additional measures to reduce the number of “sue and settle” types of litigation filed by third parties against the Agency.  The practice of sue and settle has been criticized by such groups like the U.S. Chamber of Commerce which has characterized the practice as 

[W]hen a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process.  The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties.  These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.

Citing to Constitutional principles of separation of powers, due process, and cooperative federalism – including citing James Madison and Federalist Papers No’s. 47 and 51- Pruitt reinforced his views on the importance of (1) legal process, (2) adherence to the rule of law, and (3)  cooperative federalism.  The practical effect of the directive involves the following procedural changes:

• The directive requires the Office of General Counsel to publish online any notice of intent to sue the Agency within 15 days of receipt, including the complaint or petition.
• EPA will notify any affected states and regulated entities within 15 days of receiving a complaint.  The Agency will work to receive the concurrence of any affected State or regulated entity before entering into a consent decree or settlement agreement.
• EPA retains the discretion to enter into consent decrees and settlement agreements with third parties.  Any proposed settlement and decree will be published online and allow a 30-day opportunity for public review and input.  EPA reserves the right to hold public hearings.
•  The Administrator reserves authority to deviate from the directive.

The Administrator’s directive and supporting memo can be found here.

Pruitt Memo to AAs, RAs, and OGC, dated Oct. 16, 2017 “Adhering to the Fundamental Principles of Due Process, Rule of Law, and Cooperative Federalism in Consent Decrees and Settlement Agreements.”

Pruitt Directive dated Oct. 16, 2017 “Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements”