Pruitt Eyes New Legal Discovery To Bolster ‘Sue And Settle’ Attack On EPA

Oklahoma Attorney General Scott Pruitt (R) has been granted the right to intervene in environmentalists’ pending suit seeking to force EPA to act on stalled state air quality plans for nitrogen dioxide (NO2), a move that Pruitt says will allow him to use the discovery process to gather records on “sue-and-settle” agreements he has repeatedly failed to obtain through open-records requests.

Pruitt says this intervention will aid his ongoing effort to obtain data on alleged collaboration between EPA and environmentalists on “sue and settle” lawsuits, as he says the rules of discovery are “liberally construed” by the court, adding that the pending NO2 lawsuit could cause “very real injuries” by dictating a schedule that Oklahoma would be unable to meet.

“The best way EPA can resolve any doubt and dispel any myth or legend that they are cutting deals is to provide the documents we have asked for,” he said in a Feb. 19 interview with Inside EPA.

A federal court in Colorado Feb. 11 agreed to Oklahoma’s request to intervene in WildEarth Guardians v. EPA, a case in which environmentalists allege that Oklahoma and 10 other states have failed to submit sufficient plans for meeting NO2 air quality standards. If EPA were to find they failed to submit plans, it would trigger a two-year deadline for it to impose a federal plan dictating what steps need to occur in the state. Relevant documents are available on (Doc. ID: 2462026)

The court allowed the state to intervene after EPA and environmentalists declined to oppose the state’s motion. An environmentalist source says the plaintiffs did not oppose the intervention because the U.S. Court of Appeals for the 10th Circuit has “very liberal standards for intervention,” and criticized Pruitt for “spending hard-earned tax dollars to fight clean air.” The source did not expect the intervention would change the outcome they hope to achieve, which would be a deadline for EPA to act.

Pruitt’s intervention is part of long-running campaign by agency critics to push back on lawsuits that have forced the agency to take statutorily required actions to review rules relating to air toxics, the national ambient air quality standards, coal ash, cooling water intake design, lead paint cleanups, water quality and others.

Critics say such “sue and settle” agreements stem from EPA working with environmentalists on “friendly” lawsuits that achieve shared goals, in which the agency allegedly cooperates with environmentalists who sue the agency for missing a statutory deadline, then negotiates deadlines for taking action through a closed-door meeting.

Pruitt and other critics have long been concerned that courts have not been willing to grant third parties the right to intervene in the deadline suits, finding they lack standing because the deadline agreements that result do not, in themselves, injure those seeking to intervene. Wyoming on Feb. 25 also sought to intervene in the case, and was granted intervenor status by the court Feb. 26. The state says it has already submitted its NO2 plan to EPA, so the suit is moot.

To address this, critics have pushed legislation — such as H.R. 1493 — that would overhaul the settlement process, easing third parties’ ability to intervene in the suits and creating new rules on the public comment process for settlements the government reaches with outside groups.

The bill’s provisions are slated to be considered on the House floor in the coming days after GOP lawmakers incorporated many of them into a broad regulatory review overhaul package, H.R. 2804. In a Feb. 25 statement, the White House threatened to veto the entire bill, saying it would add layers of “unnecessary procedural requirements” to rulemakings.

And EPA officials dismiss the accusations of any collusion with environmentalists. EPA’s General Counsel Avi Garbow, in a Feb. 12 blog post, said the agency has no control over who sues them and that they only pursue settlements when there has been a clear violation of the law that would be pointless to spend taxpayer dollars fighting in court, particularly when the outcome might be less favorable to the agency.

Garbow called the “sue and settle” accusations are “wholly invented” and said that the ability of citizen groups to sue the agency for missing deadlines is a “bedrock component” of how Congress has designed environmental laws.

Environmentalists say industry and GOP attacks on “sue and settle” often leave out the fact that EPA is often years, and sometimes decades, late in meeting deadlines set by Congress to review or issue rules, and that at times industry and states follow the same practice of suing EPA for missing deadlines and then settling in a consent decree.

Recognizing that Congress is not likely to advance legislation to address his concerns, Pruitt has long suggested that litigation is a more effective strategy to curtail EPA actions. “The judicial process is the right way to go,” he told Inside EPA last year.

To address this, he has twice filed Freedom of Information Act (FOIA) requests to obtain settlement records from EPA, but both were rejected by the agency as overly broad. Pruitt sued EPA over its latest FOIA denial, but last December a federal court in Oklahoma agreed with the agency that an EPA employee would have “no idea” how to locate the records being sought. Pruitt plans to soon file a third FOIA request that is more narrowly tailored.

With intervenor status for Oklahoma secured, Pruitt says he will use the discovery process to attempt to “engage in discovery with other parties of the lawsuit” to gather documents that could show collaboration, though the court would need to approve any request for discovery, and Oklahoma has yet to file a motion seeking to start discovery.

In the interview, Pruitt called it “extremely important” that Oklahoma was allowed to intervene in the case, as he says it will mean that any settlement that comes as a result of the case would be able to take into account considerations from Oklahoma.

Beyond the concerns of the specific case, Pruitt says a key concern of deadline suits is that EPA may commit itself to obligations that do not exist under the Clean Air Act, though the agency has denied that occurs.

Pruitt’s broad concerns about deadline suits are shared by some prominent voices in the business community. An official with the U.S. Chamber of Commerce says a key problem with “sue and settle” is that settlements are negotiated in secret and that private parties can “essentially control EPA’s agenda” by deciding which of the many missed mandatory deadlines to sue over.

The Chamber source disputed many of the arguments that EPA’s Garbow made in the Feb. 12 blog, as the source says settlement agreements don’t always save money, as tight deadlines negotiated without the input of states can result in “rushed, sloppily written” rules that take years to correct. He also says that while the agency cannot choose who sues it for missed deadlines, the agency “readily chooses” when to settle and when to oppose groups who seek to intervene.

And William Yeatman, a critic of “sue and settle” at the Competitive Enterprise Institute (CEI) who requested attribution, says that EPA’s Garbow has sidestepped the issue of what he says is the “surrender of regulatory priority-making to green litigation groups.”

When the agency agrees to a deadline in a settlement, Yeatman says, EPA has to adjust its priorities and resources to meet that deadline, which he says is “no different” than advocacy groups driving policy. At the very least, EPA should negotiate its priorities with states because they are typically the ones implementing the policies crafted by EPA. However, Yeatman also puts some of the blame on Congress for passing laws with too many deadlines and for the federal courts for not recognizing that the agency is “overwhelmed with deadlines.” — Chris Knight


Inside EPA – 02/28/2014, Vol. 35, No. 9