‘Sue and Settle’ Update: Oklahoma Leads the Way as A Dozen States File Suit Against the EPA in Federal Court

EPA Headquarters in Washington, D.C. (courtesy Wikimedia)

The federal government seems to have quite a few tricks up their sleeve when it comes to spending and regulation.  ‘Sue and settle’ is the latest tactic used by the federal government and environmental groups to increase the federal government’s regulatory power over the private sector. The way this tactic is employed is when a federal agency, like the Environmental Protection Agency (EPA), and a like-minded group, like the Sierra Club, coordinate a lawsuit between each other where there is no aggrieved party. The court then quickly adopts a pre-arranged settlement. Not only does this undermine the adversarial litigation process, the settlements pave the way for new regulations that are favored by the environmental groups and the EPA. The deadline to execute the settlement is intentionally short term, which leaves those affected by the new regulation with little opportunity to react. The EPA then implements the new regulation on a rapid timetable and, if questioned, the agency defends its actions as “court-ordered.” Now it appears that several states have had enough, and have decided to take on the EPA and ‘sue and settle’ in court.  Led by Oklahoma’s Attorney General (AG) Scott Pruitt, 12 state AG’s  have filed suit against the EPA demanding the agency turn over documents that may prove to show the pattern of cooperation and collaboration with various environmental organizations that has been termed ‘sue and settle.’

In a press release last week announcing the collective action with other states against the EPA, Oklahoma Attorney General Scott Pruitt made clear the need for transparency regarding the agency and the way in which they are working with other groups in order to further a regulatory agenda:

“This appears to be a blatant strategy by the EPA to go around the process and bend the rules to create environmental regulations that have failed in Congress,” Pruitt said. “As part of our investigation into the pervasiveness of this tactic, we requested documents that the EPA has refused to produce. If the EPA is making backdoor deals with environmental groups to push their agenda on the American people while bypassing the states and Congress, we need to know.”

The case has been filed in federal court in Oklahoma and Mr. Pruitt has been joined by the AGs representing Alabama, Georgia, Kansas, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, Utah and Wyoming in the lawsuit. The suit alleges a pattern of non-disclosure after repeated requests for information from the agency by the states regarding records “related to the EPA entering consent decrees with environmental organizations in lawsuits concerning the implementation of certain environmental programs.” After an initial denial on the grounds of the request being too broad, the states revised their request focusing on a “federal haze program and asked the EPA to waive any fees for producing the documents, arguing that their release was in the public interest.” This time, not only was the request by the states denied, so was the fee waiver! The AGs have now gone to the U.S. District Courts to seek both the records, and the fee waiver. 

Attorney General Pruitt noted that, “This is a matter of transparency,” and the need for transparency on ‘sue and settle’ is not just something that has been recognized and sought after at the state level. In both the House and Senate there is legislative action being pursued by Republican Sen. Chuck Grassley of Iowa and Republican Rep. Doug Collins of Georgia.  TPA has supported the legislation and led a coalition urging Congress to pass the legislation. Georgia has joined the lawsuit, and it was Georgia Attorney General, Sam Olens, who worked with Collins on crafting his legislation (H.R. 1493, the Sunshine for Regulatory Decrees and Settlements Act of 2013) seeking to limit the ability of the agencies to impose regulations as a “settlement of a lawsuit.”

South Carolina Attorney General Alan Wilson echoed the frustration with Congress’ lack of action regarding this very important issue that has real consequences for state and local economies:

“Unelected bureaucrats in Washington keep trying to regulate through administrative fiat what Congress refuses to legislate. The EPA’s regulatory abuses go too far as their ‘sue-and-settle’ policy disregards due process and ignores the rule of law.”

Taxpayers Protection Alliance couldn’t agree more! This harmful tactic needs to be investigated and if the EPA will not be forthright in how decisions are being made regarding the fast-tracking of various regulatory measures that may or may not involve groups with a vested interest, it is up to Congress to implement the very oversight they are responsible for conducting on agencies like the EPA. The legal action taken by the 12 states last week can hopefully help to spur the House and Senate to act accordingly to help bring some needed exposure to ‘sue and settle’ and the harmful ways it is impacting businesses, consumers, and taxpayers.