AGC joined 190 other industry groups from a wide selection of economic sectors to express concern about a growing path of influence whereby groups use lawsuits that seek to force federal agencies to issue regulations that advance their policy priorities. These lawsuits are used to negotiate rulemaking schedules and other concessions from agencies outside of the traditional regulatory process. Unfortunately, impacted parties, including private citizens and states who may be subject to the regulations at issue, have been denied the opportunity to intervene in these suits as some courts have held that they lack standing to participate.
Many of the environmental rules that are in the pipeline for the next four years are on EPA’s regulatory agenda because of court ordered settlement agreements. Environmental groups will sue the EPA, demanding the agency issue a regulation on an accelerated timeframe. Rather than fighting the lawsuit, EPA quickly agrees to the special interest demands. These settlement agreements are reached after closed-door negotiations between EPA and environmental groups where other interested parties are excluded. These out of court settlements go around the public participation and transparency protections of the Administrative Procedure Act (APA) and have become a tool to force EPA to issue many more regulations than would otherwise be written.
Once the settlement is approved by a federal court in a consent decree, EPA is legally bound to engage in the rulemaking. Of further concern, due to the Equal Access to Justice Act of 1980, when the court approves the consent decree as a judgment against the agency, the victorious group is allowed to recover all attorneys’ fees, leaving US taxpayers to foot the bill. In the past 3 years, the administration has concluded approximately 60 settlements with special interest groups – 29 of these agreements bound EPA to make major policy changes.
In response to this, Attorney General Scott Pruitt (Okla.) and 12 other attorneys general (Ala., Ariz., Ga., Kan., Neb., N.D., Mich., S.C., S.D., Texas, Utah, Wyo.) sent a federal records request in August to EPA, requesting access to documents related to the agency’s apparent new “sue and settle” strategy with environmental groups. This request is still pending. Congress has also taken notice, last year legislation was introduced and the House Oversight and Government Reform Committee held hearings, both critical of this process. The letter AGC and others signed demonstrates industry’s united opposition to this strategy as an affront to the protections built into the traditional rulemaking process.
UPDATE APRIL 24, 2013: EPA has since announced that it will comply with one of the provisions asked for in the letter, a method for providing the general public and the regulated community with timely and transparent access to information involving any legal action, or notice of intended legal action, against the EPA. Groups planning to file citizen suits against EPA must submit a "Notices of Intent to Sue" the agency at least 60 days prior to filing any lawsuit. The agency has agreed to post all such notices it receives on a weekly basis. The "Notices of Intent to Sue" can be found on EPA's website here.
For a more information about what to expect from the environmental agenda in 2013, click here.