Environmental Groups Organize Trump ‘Resistance’
The Trump Administration remains focused on reducing regulatory burdens, expediting infrastructure projects, and delegating more enforcement authority to the states. These changes, coupled with the proposed significant budget cuts to the U.S. Environmental Protection Agency (EPA), have spurred big donations to environmental groups across the country. As reported in the Washington Times, the Sierra Club has touted a 700 percent increase in donations since the November 2016 election. AGC and others are anticipating a corresponding increase in the use of citizen suit provisions to enforce environmental laws and challenge regulatory changes. Read on to better understand how these lawsuits create obstacles to construction and the potential long-term solutions.
Construction firms operate under a web of regulations and permits issued by government agencies to carry out the intent of the many environmental statutes enacted by Congress, including the Clean Water Act (CWA), the Clean Air Act (CAA) and the Endangered Species Act (ESA). These statutes include provisions that allow a private citizen to sue any person (including the government) for violating a mandatory requirement of a statute. This includes lawsuits brought in federal court: (1) to compel EPA to carry out a nondiscretionary act or duty (e.g., promulgate regulations); and (2) to challenge “any person” alleged to be in violation of any statute (e.g., contractor allegedly discharging stormwater from a construction site without a CWA permit).
Sue and Settle Tactics
The U.S. Chamber of Commerce has raised awareness of the troubling pattern where EPA agrees to legally binding settlement agreements, in lawsuits brought by special interest groups, that prioritize agency actions and create new requirements outside of the normal rulemaking process. Specifically, environmental statutes, such as the CAA and the CWA, require EPA to promulgate rules or review existing standards by certain deadlines. EPA generally fails to meet those deadlines and environmental advocacy groups generally sue the agency via the citizen suit provisions in the underlying statute for failure to act. Most of the time EPA settles these cases. And therein lies the pattern that is referred to as “sue and settle.”
The U.S. Chamber of Commerce released an updated report, Sue and Settle Updated: Damage Done 2013-2016, in conjunction with a Congressional hearing on the same, that points out 77 consent decrees between advocacy groups and EPA from January 2013 to January 2017 (e.g., agreements to: reconsider or revise the particulate matter and ozone National Ambient Air Quality Standards; evaluate the expansion of the Lead Renovation, Repair and Painting (RRP) rules; consider rules to control stormwater discharges from developed sites). A main concern is that this practice allows special interest groups to negotiate accelerated rulemaking schedules and dictate the specifics of regulations during closed-door negotiations. This goes against the public participation and transparency protections of the Administrative Procedure Act (APA).
In 2013, the Chamber issued its first sue and settle report and AGC joined with nearly 200 industry groups opposing this strategy as an affront to the protections built into the traditional rulemaking process. Small strides were made when EPA soon thereafter began to consistently disclose on its website the “notices of intent” to sue that it receives from outside parties (click here). However, EPA keeps the details of its settlement negotiations private and prohibits states and other outside stakeholders from participating.
AGC Recommendations
In response to the projected increase in infrastructure development, AGC remains concerned that citizens and environmental groups will vigorously try to halt or slow down these efforts through citizen suits, National Environmental Policy Act (NEPA) lawsuits (under the APA) and other challenges. These lawsuits can take years to resolve and the delay not only impacts the ability to secure the necessary environmental approvals and the financing of the project, but – in far too many cases – impedes projects that are vital to the renovation and improvement of our nation’s municipal water supplies, wastewater treatment facilities, highway and transit systems, bridges and dams.
AGC has urged Congress and the Administration to consider a reasonable and measured approach to citizen suit reform designed to prevent the misuse of environmental laws.
AGC’s recommendations include the following:
- Further shorten and standardize the statute of limitations for challenges to final NEPA decisions or claims seeking judicial review of an environmental permit, license or approval issued by a federal agency for an infrastructure project;
- Require interested parties to get involved early in a project’s review process to maintain standing to sue later;
- Require bonds be posted by plaintiffs seeking to block activities to reduce abuse and delay tactics that harm private parties and taxpayers; and
- Require that the enforcement of federal environmental rules on a construction site be enforced only by trained staff of government agencies -or-
- Limit citizen suit penalties to violations of objective, numeric limitations rather than subjective, narrative standards;
- Extend the “notice period” beyond the current 60 days (giving regulatory agencies more time to review notice of intent letters and initiate formal actions);
- Clarify the definition of “diligent prosecution” of alleged violations, thereby allowing federal/state authorities to exercise their primacy in enforcement and preventing unnecessary citizen suit intervention.
Long-term Outlook
EPA Administrator Scott Pruitt told the Wall Street Journal of his plan to end the “sue and settle” process. Pruitt stated: “There is a time and place to sometimes resolve litigation…but don’t use the judicial process to bypass accountability.” It has been widely reported by environmental trade press (click here and here) that Pruitt recently signed a “directive” curtailing sue and settle tactics.
The Chamber’s report offers recommendations that EPA and Congress should take to bring greater transparency and public participation to the federal regulatory process.
AGC supports legislative efforts in the 115th Congress to curb the worst abuses of sue and settle tactics. Legislation introduced by Senate Judiciary Chairman Chuck Grassley (R-Iowa) and Rep. Doug Collins (R-Ga.), S. 119 and H.R. 469, respectively, would require agencies to publicly post and report to Congress any information on cases, consent decrees or settlement agreements. Also, H.R. 1525 by Rep. Jason Smith (R-MO) would bar the government from agreeing to pay plaintiffs' attorney fees in settlements under the CAA, CWA or ESA. Many environmental laws allow the payment of reasonable attorneys’ fees to private citizens that prevail in the litigation. In addition, provisions of the Equal Access to Justice Act provide that any “prevailing” party is eligible to recover attorneys’ fees, which groups routinely use after successfully challenging government actions under the APA.
For more information, please contact AGC’s Leah Pilconis at pilconisl@agc.org.