A federal watchdog agency has found that citizen suits that aim to force the Environmental Protection Agency to meet deadlines specified by federal environmental laws not have much impact on the substance of regulations.
The conclusion debunks an argument advanced by some right-wing politicians, including Republican members of the U.S. House of Representatives, that the agencies are improperly collaborating with environmental advocates to reach lawsuit settlements. For example, a 2013 report by the House Committee on the Judiciary concluded that citizen suit settlements are frequently used “to bind executive discretion under judicial authority, including to bind executive discretion over successive administrations.”
That House committee report went on to hypothesize at length about the impact of so-called “sue and settle” cases, surmising that they cause the agency to inappropriately adjust regulatory priorities.
“In sue-and-settle litigation, defendant regulatory agencies, such as the U.S. Environmental Protection Agency, typically have failed to meet mandatory statutory deadlines for new regulations or allegedly have unreasonably delayed discretionary action,” the House committee report said. “Political and practical concerns in sue-and-settle cases frequently give rise to perverse agency incentives to cooperate with actual or threatened litigation and negotiate a consent decree or settlement agreement to resolve it. This is because, once a decree or agreement is in place, the defendant agency has a litigation-based excuse to expedite action that helps to diminish political costs, reorder agency funding priorities, or serve other pro-regulatory ends.”
The cases studied by the Government Accountability Office for an audit report released last month do not support this claim.
GAO reviewed 32 “major” rules that EPA finalized between May 31, 2008 and June 1, 2013. Nine of them were issued by the agency after settlements of Clean Air Act lawsuits brought to enforce statutory deadlines.
“[N]one of the settlements we reviewed included terms that required EPA to take an otherwise discretionary action or prescribed a specific substantive outcome of the final rule,” GAO wrote in the report.
The report explained that citizen suit settlements do not affect the substance of rules because a federal regulation that dates back more than 20 years prevents the government from agreeing to settlements that create mandatory duties. That regulation had its genesis in a procedure for approving settlements of lawsuits against government agencies instituted by Reagan administration attorney general Edwin Meese in 1986.
“[I]n general, this policy restricts [the Department of Justice] from entering into a settlement if it commits EPA to take an otherwise discretionary action, such as including specific substantive content in a final rule unless an exception to this restriction is granted by the [d]eputy [a]ttorney [g]eneral or [a]ssociate [a]ttorney [g]eneral of the United States,” the report said.
That limitation does not apply to consent decrees, which are essentially negotiated court orders approved by a federal judge.
Citizen suits are authorized by all seven of the nation’s principal anti-pollution laws.