GAO report finds little impact on environmental rules from deadline cases

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 HouseĀ  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 reportĀ  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.

 

Commentary: Senate rules action allows respite in partisan tug-of-war over DC Circuit ideology

When U.S. Senate Democrats moved Thursday to alter the right of the chamber’s minority party to block executive and some judicial nominees, it made a decision that, on the surface, promises an easier path for all of President Barack Obama’s judge candidates.

From an environmental law perspective, the changes to the Senate’s filibuster rule are likely to mean that the U.S. Court of Appeals for the District of Columbia Circuit will soon have all of the judges authorized by law.

Right now, there are three vacancies on the 11-seat court. Of the eight sitting judges, four were appointed by Democratic presidents and four were appointed by Republican presidents. However, the court also has six senior judges, five of which are GOP appointees. Those senior judges do sit on panels and decide cases. As a result, the real partisan divide on the court is 9-5 in favor of Republicans.

This divide has significant implications for environmental law. For example, the Congressional GOP, and many of the party’s governors, have opposed the Obama administration’s efforts to use the Clean Air Act to combat climate change. One of those efforts – the recently proposed and critical regulation that would cap the greenhouse gas emissions of new power plants – is likely to be challenged in the DC Circuit.

Having a full complement of active judges will mean two things: first, that the mostly-Republican senior judges will not be as likely to play the central role they now occupy in the court’s deliberations and, second, that the far-reaching decisions on regulatory matters, including those indicating the administration’s policy response to climate change, that come before the court will be more likely to get an even-handed evaluation.

This is to be applauded, but it is not the only benefit of today’s landmark Senate action. There are 93 vacancies in the federal judiciary, including dozens in the U.S. district courts. It is those federal district judges who decide everything from criminal cases to huge commercial disputes. They also handle citizen suits to enforce the country’s bedrock environmental laws. Now that President Obama will not face the seemingly perpetual Republican blockade of his judicial nominees, perhaps those seats can be filled in short order, which will lead to faster, and maybe fairer, resolution of critical environmental cases.