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EPA Administrator Pruitt's Welcome Efforts to End Sue and Settle

On October 15, U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a directive taking on the practice known as “sue and settle,” whereby environmental special interests leverage lawsuits to dictate priorities to the EPA.

Sue and settle grew out of the Obama administration’s obsession with “doing something” about climate change. The EPA is required to meet thousands of statutory deadlines that amount to the nuts and bolts of regulating air and water quality. But instead of doing these tasks, as required by Congress, the Obama administration poured its resources into climate policy. As a result, the agency’s deadline performance has been woeful. For example, Obama’s EPA missed 84 percent of almost 1,100 Clean Air Act deadlines, by an average of 4.3 years.

The problem is that environmental groups are allowed to sue to force the agency to meet a missed deadline. As a result, green groups could pick and choose among which missed deadlines the EPA should have to perform. Not coincidentally, fossil fuel producers and industrial-scale users were always at the top of the list. So while the agency allocated its resources to climate regulations (that wouldn’t have a measurable effect on the climate), green groups used “sue and settle” to set the agency’s regulatory priorities.

Pruitt’s directive addresses many of the ills associated with sue and settle. For example, it would end the EPA’s Obama-era practice of litigating to keep states from the negotiating table, which was a gross affront to cooperative federalism. The directive also improves transparency by requiring more public notice of sue and settle litigation. Finally, the directive suggests that the agency will fight these special interest lawsuits, rather than immediately settling, which is what occurred during the Obama presidency.

However, Administrator Pruitt’s most significant policy to fight sue and settle was not mentioned in the directive. Fundamentally, the only way to end sue and settle is for the agency to perform in a timely way the responsibilities given to it by Congress. To this end, Pruitt’s management strategy—a “back to basics” focus on core statutory responsibilities—clearly gives priority to meeting deadlines. In fact, Pruitt’s commitment to faithfully executing the law is the most effective strategy to end sue and settle.