• EPA Administrator Scott Pruitt Blocks Unfair “Sue and Settle” Tactics
  • March 7, 2018 | Author: John E. Milner
  • Law Firm: Brunini, Grantham, Grower & Hewes, PLLC - Jackson Office
  • On October 16, EPA Administrator Scott Pruitt signed a directive stating that he is ending “sue and settle” agreements through which Pruitt asserts that environmental organizations have forced EPA into legal agreements that impose binding deadlines for issuing discretionary regulations. The directive, together with an explanatory memorandum, prohibits EPA from entering into consent decrees with terms that courts would have lacked the power to impose if the parties involved had not resolved litigation through a legal agreement. Pruitt’s directive states: “EPA shall also not enter in a consent decree or settlement agreement that converts an otherwise discretionary duty of the Agency into a mandatory duty to issue, revise, or amend regulations.”

    The directive also makes it more difficult for environmental organizations to recover attorney’s fees: “If EPA agrees to resolve litigation through a consent decree or settlement agreement, and therefore there is no ‘prevailing party,’ then the Agency shall seek to exclude the payment of attorney’s fees and costs to any plaintiff or petitioner in the litigation.” EPA shall not seek to resolve the question of attorney’s fees and costs “informally,” the directive states.

    MMA has opposed the “sue and settle” tactic for many years, as has the National Association of Manufacturers and other national and state associations. Jay Moon, MMA President and CEO, commended Pruitt’s directive: “The regulated community, including MMA members, nationwide have been forced to comply with EPA regulations mandated by judicial decrees in which there was no opportunity for input or due process due to the sue and settle tactic used by EPA and environmental organizations. We are very pleased that Administrator Pruitt is ending this unfair device and instituting a transparency of the regulatory promulgation process so that everyone will have an opportunity for meaningful participation.”