From Dr. Roy Spencer, who says he received this via EPA’s email system. It isn’t on the EPA website yet, but I’m guessing their press office is running slow today due to the shock. However, it has been covered by the Washington Times who apparently got the same email. It was an “oral directive” since July.
Administrator Pruitt Issues Directive to End EPA “Sue & Settle”
“The days of regulation through litigation are over,” – EPA Administrator Scott Pruitt
WASHINGTON (October 16, 2017) – 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.
More specifically, EPA either commits to taking an action that is not a mandatory requirement under its governing statutes or agrees to a specific, unreasonable timeline to act. Oftentimes, these agreements are reached with little to no public input or transparency. That is regulation through litigation, and it is inconsistent with the authority that Congress has granted and the responsibility to operate in an open and fair manner.
“Sue and settle” cases establish Agency obligations without participation by states and/or the regulated community; foreclose meaningful public participation in rulemaking; effectively force the Agency to reach certain regulatory outcomes; and, cost the American taxpayer millions of dollars.
With today’s directive, Administrator Pruitt is ensuring the Agency increase transparency, improve public engagement, and provide accountability to the American public when considering a settlement agreement or consent decree by:
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.
The “sue and settle” practice was nothing knew when Obama came along although EPA and other agencies turned it into a new art form for passing regulation. When I arrived in my state’s capitol such behavior by the technocrats and attorneys was going on in more than a couple of agency. Our Legislature and Governor and Cabinet decided enough was enough. Bizarrely, one of the other components of the game was for state agencies to contract law firms to represent the agency before the court. Legislature didn’t like giving agency attorney positions. The way the contracts were written there was no incentive for the firm to ever settle or end a court degree. It cost millions a year. Meanwhile these same agencies were screaming they didn’t have enough money. At least three of the environmental organizations I dealt with were little more than employers for attorneys that couldn’t make it private practice. One such attorney bragged about it. One group was actually run by their attorneys with their board treating the attorneys as if they had some special, more complete knowledge about the environment.
A positive development, but I doubt I’ll live to see any regulatory agency going to court and vigorously arguing against the need for a new regulation. Even under Trump/Pruitt I think the best we can hope for is EPA putting up a weak defense or settling when a suit is filed opposing a new regulation.
I’m often asked by Liberal friends if I’m still happy about voting for Trump? “Yes,” I reply. “Why?” they rejoinder. “Scott Pruitt,” and I let it go at that. I could go on about revoking the Paris Accord, going ahead with the pipelines, Supreme Court considerations, and ramping up pressure (which was nonexistent) on North Korea and Iran, but every army needs soldiers to fight daily in the trenches, taking care of the details that the Devil is in, and Scott Pruitt more than any other in the Trump administration is that man. Others should take courage from his example and “lead, follow, or get out of the way.”
Mike,
You can add Mick Mulvaney to your list.
The environmentalist were very upset with Mr. Pruitt’s appointment. Now we have a better understanding WHY they were so upset. This cancels their meal ticket. These changes will significantly relieve some of the distortions and inefficiencies in the regulatory process and unshackle the forces of economic growth. At the same time, if there are legitimate reasons to litigate some environmental issues, let courts and juries decide. Drain the Swamp.
Gosh, you mean that shake-down/laundering scheme that would have put any non-government (or at least non-progressive) entities in prison?
I’m beginning to like this guy Pruitt. But there are always unintended consequences. Can these changes act against litigants with genuine grievances? The King Mine fracazo comes to mind, along with various landowners affected by stream pollution rules. Someone with genuine loss should be able to recover legal costs, even in a settlement. Ristvan, you out there?
JS, IMO it will not affect legitimate greivances like Gold King at all. Sue and settle was NGO’s and others conspiring back door with EPA (even using back door email channels to avoid public records FOI) to get EPA settlements that were in effect regulations without going through the EPA’s congressionally mandated regulatory process, where they would likely have lost. The essence of Pruitt’s objection and change of policy.
But the Gold King Mine debacle illustrates the incompetence and hypocrisy of the Obama administration’s EPA better than anything. When their own workers caused one of the biggest violations of the Clean Water Act in history, no one was held accountable. Had a private company caused that spill, Al Almendariz (former head of EPA Region 6) would have crucified their executives:
http://www.nytimes.com/2012/05/01/us/politics/epa-official-in-texas-resigns-over-crucify-comments.html
Now they claim they can’t even be held accountable for the damage they caused. “The EPA has acknowledged responsibility for the spill but said in January that federal law prevents it from paying the claims because of sovereign immunity, which prohibits most lawsuits against the government.”
For the record, Scott Pruitt sued the EPA 13 times. Is he now claiming that he was wrong to do so? In the press release it states that the “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” so it would appear that the issue is that the EPA regularly failed to enforce the law unless the courts forced it to. If the EPA doesn’t want to get sued then it needs to properly enforce the law. This does not seem to change anything except that various judges will now decide how the law is enforced rather than the EPA. Whether that is good or bad probably depends on the technical qualifications of the judge in question.
While in Oklahoma, he sued to prevent EPA overreach. Now he is changing EPA’s bad practices to prevent further overreach.
Dr. Roy, yup. But he is also hving to manage his own inherited deep state swamp. My guess is that is why this new policy took so long to be announced. Remove/retire the worst swamp allegators, and let the rest know they have no EPA future if they continue to resist.
You mention only the “sue” part, but how many times did EPA settle with him? I doubt that at that time EPA and Pruitt had the incestuous relationship that he is trying to put a stop to, so your stat is irrelevant.
Zactly.
Also, it is ALWAYS better for a judge to decide how/whether the law is being enforced than unaccountable EPA bureaucrats conspiring with lawyers and NGOs. This is the fundamental difference between a nation of laws and a banana republic. Technical qualifications of the judge are once again completely irrelevant.
The thinking here seems to be that (a) the EPA wants to destroy the country but is too lazy to do so until NGO’s sue them in order to get them to enforce the law at which point they meekly capitulate and do so. Which does not seem very likely. If the EPA was so full of activists then it would be actively seeking to impose onerous regulations rather than having to be forced too by the threat of lawsuits. Alternatively if it is only the threat of lawsuits that causes the EPA to enforce the law then the EPA is actually on the side of business rather than green activists.
But, if the EPA merely enforced the laws and codes as written, then the lawsuit-funded enviro groups would NOT be funded by the EPA’s lost lawsuits!
No money from deliberately lost lawsuits = no lawyers = no enviro group money = no lawyer suites, no lawyer suits, coats, and ties. No law suits = no need for EPA budgets for EPA lawyers, and EPA suites, and EPA bureacrats, and EPA publicity (er, propaganda).
You seem to be really confused about this. File this under ‘diffusion of culpability’ and collusion.
https://www.uschamber.com/sites/default/files/documents/files/SUEANDSETTLEREPORT-Final.pdf
Why impose an obviously onerous regulation when an NGO will file a lawsuit, an activist EPA will cave, the NGO gets bucks and the settlement becomes the onerous regulation? The NGO wins. An activist EPA wins.
We The People lose.
You are confused. State AG’s (not individuals such as Pruitt) and industry groups have sued the EPA to protect citizens after the EPA or other regulatory agency hurriedly creates a ruling as a result of being sued and settling with environmental groups “representing” nature.
One side brings legitimate lawsuits representing people in response to an EPA overreach, and the other side is initiating lawsuits representing non-human entities – which always includes big payouts to the environmental groups themselves.
One of the latest examples is when wildlife groups sued to enlist the Lesser Prairie Chicken, which the FWS of course obliged and rushed a ruling along that placed all blame for LPC populations on local industry, despite the literature showing range management practices, drought, and the introduction of Asian Pheasant as the likely reasons for the acute downturn in LPC population. The states won the lawsuit against the ruling on legal grounds showing that the FWS did not follow the law in creating the ruling — not even on the grounds that the science they were citing was junk.
Do you get it now? Sue and settle tactics is an industry created out of pure sophistry, one that claims that groups of attorneys can represent non-human entities on their behalf and best interests, all while raking in 7-figure incomes. The other side is merely reactionary to these rulings that were created from the sue and settle industry. Without the sue and settle industry, there will be no need for real industry and states to protect themselves from draconian overreach.
Give us examples of what was actually done. This article is nithing but meaningless generalities. Arno Arrak
Why does this remind me of the scene where Frodo uses Sting to cut Shelob’s web?
Frodo didn’t use Sting on Shelob. That was Samwise, after Frodo had been stung by Shelob. Yes, Frodo did cut some of her webs while attempting to get through Torech Ungol but it was Sam that stuck Sting in her.
Why did I get put in moderation? What did I say?
You realize of course that some corrupt liberal judge will rule this action as illegal and unconstitutional; thereby blocking the proper (and legal) constitutional process.
Which will be appealed and eventually be settled by the Supreme Court.
Why did I get put in moderation, again? What did I say?
Only SCOTUS has constitutional authority to exist independently of the other branches. All the lower federal courts exist solely at the pleasure of Congress and are subject to being reorganized or outright dissolved.
Now that would be a real “Nuclear Option”!
“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.”
Great, my first lawsuit:
All natural sources of all of the innocent molecules which Boomers declared toxic pollutants should be posted.
The figures in Gt of yearly emissions from natural sources should also be provided to the public for scrutiny.
This shall include volcanic eruptions and the products of lightning strikes and other electrical discharges in air, as well as from forest fires in California and Western lands, since the US Forest Services is so fond of natural fires on state land as a method of natural forest management.
All uses and applications of each these compounds must be listed. This way people can understand what they are outlawing or regulating.
Estimates of anthropogenic sources should be provided for public scrutiny and meaningful comparison with the natural sources.
Required for the front page of all EPA websites and in all EPA communications.
@Zeke
I have no problem finding the natural releases of most regulated substances on EPA web sites. There are usually annual reports. What is your point?
For example, releasing oil from a power plant is regulated. Problem solved.
The point in this discussion some use the legal system to further their agenda without letting science getting in the way.
Retired Kit P says, “I have no problem finding the natural releases of most regulated substances on EPA web sites. There are usually annual reports. What is your point?
For example, releasing oil from a power plant is regulated. Problem solved.”
I am referring to the natural emissions of halocarbons, CFCs, benzenes, phenols, carbon monoxides, ozone, and nitrogen (di &)oxides into the atmosphere. These need to be quantified and constantly kept before the EPA. Because the EPA under the Boomers believe that once something is pronounced “not good” by the environmentalists, they can — and will — reduce it to zero exposure. That is the pattern of that generation’s regulatory science.
But the occurrence of these compounds in nature are rarely due to human activity. The main sources of these compounds are volcanoes, phytoplanckton, ocean outgasing, lightning, the aurorae, and other electrical discharges in earth’s atmosphere. How much is due to human activity? In all these cases, it would be a similar situation with the carbon dioxide molecule, with manmade sources a miniscule portion of the natural cycle.
Sorry for the delay in replying. Have a good day.
You won’t see this covered by the BBC. Instead I have been treated to 10 days of climate alarm ‘nudges’ and interviews with ‘haters’ and endless pop-ups about some naked clown called Weinstein. The independent investigation of truth has become more difficult of late. The communication channels are clogged with the bleats of breast-beating confessors. (Did I really say that?? Are we still allowed to speak English?) It is getting difficult to find a well-read, intelligent person with whom to have long and informative intercourse.
“is getting difficult to find a well-read, intelligent person with whom to have long and informative intercourse.”
Welcome to Twitter.
If having a law degree is an indication of being well read and intelligent, the problem is lying.
There is no point in having a discussion with a Green Peace representative.
Some you can learn from and some you can teach. Some enjoy enjoy the drama of sticking to their agenda.
“Kit, where is the “morality” in power generation? Most people I know in the power business appear to be moral beings.”
@oenman50
I am not sure what prompted this question. One of the reasons I enjoyed working in the industry was the integrity of the people I worked with. One of the difficulties in doing the right thing, is reaching an agreement on what the right thing is.
Maybe being ethical is easier for engineers. For activist and some environmental lawyers, the end seems to justify the means.
However, the most expensive, most dangerous, with the highest environmental impact is the MW/h not available when it is needed.
There are consequences for not keeping the lights on.
Kit, I think from your 11:51 AM post, you intended to say mortality instead of morality. At least that’s how I read it.
Thank you Juan.
It is mistakes like that which provide ammunition for lawsuits.
Having a ‘mindset’ is a common ‘root cause’ for mistakes. I was revising a calculation which as result change the numbers in a license application. I noticed that ‘upstream’ was used when ‘downstream’ was correct. At least 30 engineers, read and accepted the word wrong because they knew what it was suppose to say.
Everyone was focused on the numbers in the calculation.
“Action speaks louder than words but not nearly as often.”
Mark Twain
Attorneys are obligated to present a vigorous defense for their client — regardless of guilt/innocence.
Every attorney working at the EPA involved in these schemes should be disbarred. They did not provide their client with honest representation.
Similarly, Justice Dept. attorneys like Sally Yates should also be disbarred for failing to defend their client’s interests to the fullest extent of the law.
The most prolific creature in the swamp is the attorney.
Organizations sue the EPA, get agreements not part of any law, then get their coffers repaid to be able to sue again. This cycle is over. Whoa boy. Costs for environmental organizations just went through the roof by billions.
‘Excluding attorney’s fees and litigation costs …. ‘
That’ll make the lawyers think twice before jumping on the bandwagon.
This is good, but not good enough. The real abuse by the EPA is the imposition of fines on a per deium basis for compliance. The only way out is to comply, and if the party believes the EPA is wrong, the only recourse is to sue the EPA. This costs big monies, on top of the threat of having to pay the fine. It is a way of imposing the EPAs will without due process.
This does nothing to stop anyone from suing the EPA, it just bars a behind closed doors settlement. Having to settle in court is better, but in many cases will be decided by judges who may not have the will to follow the law.
Is this like an official admission of prior guilt? I don’t think Lisa Jackson was admitting anything like what Pruitt has found necessary to dismantle. She was nudging and winking a lot though.
And now what Congress needs to do is pass a law so that any settlement agreement must get approval from the House subcommittee who has oversight of that agency. This way it can’t be reinstated in 3 years.
“Attorneys are obligated to present a vigorous defense for their client — regardless of guilt/innocence.”
This is about civil law not criminal law. If I would make a ‘material false statement’ to the NRC related to a nuke plant, I would prosecuted in criminal court.
This was how it was explained to be in a course for engineers on environmental law.
This was how it was explained to be in a course for engineers on environmental law.
Continuing. In civil court, environmental lawyers will file brief that might list 25 reasons, many of them mutually exclusive. Then you go judge shopping. All it takes is one judge to accept one reason and project is tied up in court.
True story. One of projects was stopped because of claims of ‘environmental racism’ in Louisiana. The project was renamed and built in New Mexico. Apparently wearing a white lab coat working in a clean room environment is racism if you black but is okay if you are brown.
It may have had something to do with the NM governor having been Secretary of Energy under Clinton and recognizing the merits of a $3 billion project providing hundreds of jobs.
Is EPA now a model for the other old growth agencies?
The EPA worked diligently to sell out the USA while most people had no idea what they were doing .
Mr . Pruitt knows first hand what they were doing and is unraveling a massive mess .
Good luck to him and his staff .
Sue / settle names, $ and details should be openly available and publically exposed for the fraud they are .
Was Exxon to be the next one ? Who knew indeed . Is there any doubt ? Just a little to late .