Environmental and Energy Executive Orders – Ever Expanding Exercise?

Posted on December 26, 2017 by John Milner

The presidential use of executive orders (EOs) is not a new practice but President Trump is using EOs to impact significant environmental and energy issues.  He is reported to be issuing EOs at the second-fastest rate of any modern Republican president, second only to President Eisenhower. This trend exists despite consistent criticism prior to being elected of President Obama’s EOs: “Obama … goes around signing all these executive orders.  It’s a disaster.  You can’t do it.”

What is an EO?  Here is a quick summary.  An EO is a directive issued by the president to federal governmental agencies.  The president may revoke, modify, or supersede any prior EO.  Presidents often undo the EOs of their predecessors, as President Trump has done a number of times with regard to EOs issued by President Obama.  Courts can declare an EO to be illegal or unconstitutional.  Congress can pass legislation overturning an EO, subject to the president’s veto authority.

In the environmental and energy areas, President Trump has issued the following EOs:

1.       “Expediting Environmental Reviews and Approvals for High-Priority Infrastructure Projects,” EO No. 13766, dated January 24, 2017.

The EO directs the chairman of the Council on Environmental Quality (CEQ), within 30 days after a request, to determine a project’s environmental impact and decide whether it is “high priority.”

2.      “Reducing Regulation and Controlling Regulatory Costs,” EO No. 13771, dated January 30, 2017.

The EO states that executive departments and agencies must slash two regulations for every one new regulation proposed. Regulation spending cannot exceed $0 and any costs associated with regulations must be offset with eliminations. The EO also directs the head of each agency to keep records of the cost savings, to be sent to the president.

3.      “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the U.S.’ [WOTUS] Rule,” EO No. 13778, dated Feb. 28, 2017.

The EO calls on federal agencies to revise a regulation put in place by President Obama called the Clean Water Rule or WOTUS. Published in 2015, WOTUS arguably expanded the number of bodies of water protected by the federal government to include certain streams, ponds, and smaller waterways that were not previously clearly covered.  The EO directs the administrator of EPA and the assistant secretary of the Army for Civil Works to review WOTUS and propose a new one that either eliminates or revises the rule.

4.      “Promoting Energy Independence and Economic Growth,” EO No. 13783, dated March 28, 2017

The EO directs EPA to review the Clean Power Plan (CPP) EO, signed by President Obama in 2014. In 2016, the Supreme Court granted a stay pending review in the U.S. Circuit Court for the District of Columbia of the CPP, which aimed to reduce carbon pollution from power plants.  This EO also requires federal agencies to review any regulations that could “potentially burden the development or use” of oil, natural gas, coal, and nuclear energy resources. Within 180 days, the agencies must submit reports to the Office of Management and Budget, which will take action to eliminate burdensome regulations.

5.      “Implementing an America-First Offshore Energy Strategy” EO No. 13795, dated April 28, 2017

The EO reverses a prior ban on Arctic leasing put in place under the Obama administration and directs the Interior Secretary to review areas available for off-shore oil and gas exploration.

6.      “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure,” EO No. 13817, dated August 15, 2017

The EO establishes “One Federal Decision” for major infrastructure projects, assigning each project a lead federal agency and creating a performance accountability system to track its progress.  It sets a goal of two years for the average completion time of the permitting process.  The EO also revokes Executive Order 13690, which mandated stricter environmental review standards in floodplains as part of President Obama’s Climate Action Plan.  That prior EO required planners to use flooding predictions that incorporated climate science.

The president may also issue proclamations, as well as presidential memoranda.  Like EOs, presidential proclamations and memoranda can have significant impacts.  For example, on December 4, 2018, President Trump issued a proclamation to substantially reduce the size of the Bears Ears and Grand Staircase-Escalante National Monuments in Utah.  Additionally, the EPA administrator may issue directives to the agency staff that have important ramifications, such as Administrator Scott Pruitt’s October 16, 2017 directive to end so-called “sue and settle” judicial settlements relating to EPA regulations.

It appears that EOs and their related executive edicts have become the standard operating procedure for presidents and their appointees.  The pressure to have “instant impact” is due, in part, to the political division in Congress and the impatience and uncertainty of legislative action.  As always, “the buck stops” with the courts to deal with the issues created by these executive actions.  As we all know, judicial action can bog down resolution of these issues almost indefinitely.  There is no easy way out of this quagmire.

Kozinski Resignation Complicates Mandamus Ruling in Kids Climate Lawsuit

Posted on December 22, 2017 by Patrick A. Parenteau

In a stunning development, Judge Alex Kozinski announced on Monday December 18 that he was resigning effectively immediately from the Ninth Circuit after multiple former clerks and junior staffers came forward with allegations of sexual misconduct against him.

Kozinsky was a member of a three judge panel that had just heard arguments on December 11 in United States v US District Court for the District of Oregon   in which the Trump administration is seeking a writ of mandamus to bar the climate lawsuit filed by 21 youth plaintiffs in Juliana v United States  which is scheduled for trial in February before the federal district court in Oregon.

By way of background, in November 2016, the district court denied motions to dismiss the action, allowing federal public trust and Fifth Amendment due process claims to proceed. After unsuccessfully seeking permission for interlocutory appeal, the United States filed the petition for writ of mandamus under the All Writs Act, arguing that the district court committed clear error in denying the motions to dismiss. The government also argued that the discovery process would be unduly burdensome and would distract senior administration officials like Scott Pruitt and Rick Perry from the more important work of dismantling the regulatory programs adopted by the Obama administration and increasing the nation’s reliance on fossil fuels.

Kozinski, as is his wont, was the most aggressive questioner at oral argument peppering plaintiffs’ counsel with questions regarding standing and justiciability and making it pretty clear how he was going to come down. By contrast, the other members of the panel, Chief Judge Sidney Thomas and Marsha Berzon, focused on the narrower question whether mandamus was the proper remedy at this stage of the case. Both noted that the court had never granted mandamus where there was no conflict over discovery orders. Both noted that the case had become much more manageable with the departure of the industry interveners who had been the major target of discovery requests. Both noted that District Judge Aiken and Magistrate Coffin had narrowed discovery and had pledged to exercise a “firm hand” on the pretrial proceedings. Though each judge expressed reservations about various aspects of the plaintiffs’ claims and standing neither thought those were appropriate grounds for mandamus. Commenting on the unprecedented nature of what the government was seeking Judge Thomas observed: "We would be absolutely flooded with appeals from people who think their case should be dismissed by the district court."  

Kozinski’s resignation throws a bit of a monkey wrench into the proceedings. Judge Thomas must decide whether to replace Kozinski on the panel and schedule a new oral argument or proceed to decide the mandamus issue. If he and Judge Berzon are in agreement that the writ should be denied the simplest solution would be to issue a decision to that effect.

There is precedent for this. In Connecticut v AEP a three judge panel of the Second Circuit heard arguments in a case involving a public nuisance action brought by a number of states against utilities operating coal fired power plants. While the case was pending one member of the panel, Judge Sonia Sotomayor, was nominated to the Supreme Court and had to recuse herself.  The remaining members of the panel proceeded to decide the case in the states’ favor and Judge Peter Hall wrote an exhaustive opinion on standing and political question in the context of climate litigation. Though the Supreme Court ultimately reversed on other grounds the jurisdictional holdings were affirmed by a divided vote. 

The upshot is that there is a good chance we will see the “trial of the century” unfolding sometime next year.  Mr Pruitt may get a chance to try out his “red team, blue team” climate science debate in a real courtroom.

The North Slope Is Really, Really, Getting Warmer. Drill, Baby, Drill

Posted on December 20, 2017 by Seth Jaffe

The Washington Post reported last week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it.  The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report.  Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.

How hot does it have to get to get bounced by the computer?  How about average October temperatures 7.8 degrees warmer than in 2000?  Average November temperatures 6.9 degrees warmer than in 2000?  Likely culprit?  Melting sea ice means that less sunlight is reflected.  That’s one nasty negative feedback loop.

In the meantime, as I noted in October, Alaska Governor Bill Walker has concluded that Alaska needs more oil drilling (can you say “Open ANWR” three times fast?) in order to pay for climate change mitigation.  It’s apparent that Governor Walker has not read Faust.

Governor Walker, this one’s for you.


Posted on December 19, 2017 by John A. McKinney Jr

As this is written, a New Jersey legislator plans to introduce a bill that could lead to the amendment of the state constitution.  This amendment is being referred to the “Bill of Environmental Rights.”  Here’s the proposed language:

(a) Every person has a right to a clean and healthy environment, including pure water, clean air and ecologically healthy habitats, and to the preservation of the natural, scenic, historic, and esthetic qualities of the environment. The State shall not infringe upon these rights, by action or inaction. (b) The State’s public natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations. The State shall serve as trustee of these resources, and shall conserve and maintain them for the benefit of all people. (c) This paragraph and the rights stated herein are (1) self-executing, and (2) shall be in addition to any rights conferred by the public trust doctrine or common law.

Unlike a law which requires compliance, this amendment will be used to obtain the “pure water, clean air and ecologically healthy habitats” guaranteed as a constitutional right, no different than the rights of free speech and freedom of religion.  Because it is not clear what a “right to a clean and healthy environment” actually means, state courts will have to decide the breadth and scope of such rights and the how they are protected. 

New Jersey courts can handle it.  They have dealt with similar broad language in the constitution which requires the legislature to provide “a thorough and efficient system of free public schools.”  That phrase has been fought over, in the courts and in the legislature, since the 1970’s.  It is still a hot button issue.

Will the New Jersey constitution ultimately include a Bill of Environmental Rights?  I am not sure but if it does, it will continue the state’s reputation as a great place to be an environmental lawyer.

Are RCRA Endangerment Claims Becoming The Preferred Way for Third-Parties To Regulate Point Source Discharges?

Posted on December 18, 2017 by Edward F. McTiernan

In 1972, Congress adopted the Clean Water Act (CWA) prohibiting discharges of pollutants from point sources without a permit.  Four years later, when Congress enacted the Resource Conservation and Recovery Act (RCRA), it included two notable provisions.  First, Congress excluded from the definition of “solid waste”—and thereby from regulation under RCRA—“industrial discharges which are point sources subject to permits under” CWA Section 402 (i.e., NPDES permits).  Second, Congress barred RCRA from applying to “any activity or substance which is subject to” various environmental statutes (including the CWA), “except to the extent that such application (or regulation) is not inconsistent with the requirements of such” other environmental statutes.  The net effect of these two RCRA “anti-duplication” provisions prevents RCRA from encroaching upon activities regulated by the CWA.  While much of this year’s Clean Water Act action seemed to focus on the WOTUS rule, 2017 may ultimately be remembered as the year in which plaintiffs were able to break through RCRA’s anti-duplication provisions and use endangerment claims to regulate point source discharges.

In Tennessee Riverkeeper, Inc. v. 3M Co., plaintiffs convinced a district court that they were entitled to pursue RCRA endangerment claims to regulate discharges of perfluorinated chemicals.  The court  refused to dismiss the case because, in its view, the defendants had failed to provide ‘‘any authority stating that a citizen cannot bring an RCRA claim to try to impose stricter limits on the disposal of hazardous waste than those imposed by an EPA-approved State permit or to supplement the terms of such a permit.”  Slip Op. at 20.  On November 2, the Ninth Circuit reached a similar result.  Ecological Rights Foundation v. Pacific Gas & Electric Company, (“ERF”).  Following an extensive (and largely unnecessary) analysis of RCRA’s non-duplication provisions, the Ninth Circuit stated: “RCRA’s anti-duplication provision does not bar RCRA’s application unless the specific application would conflict with identifiable legal requirements promulgated under the CWA or another listed statute.” Slip op. at 25.  In other words, plaintiffs may use RCRA to impose discharge limits on any substance not specifically named in a Clean Water Act permit, and perhaps to lower the discharge limits of substances that are.

By encouraging exactly the sort of dual regulation of a single discharge under both the CWA and RCRA that the RCRA non-duplication provisions appear intended to prevent, these decisions appear to be inconsistent with a proper reading of RCRA’s non-duplication provisions.  They may allow a judge to set discharge limits, displacing the limits (or the lack thereof) established by agency scientists following a public process.  This is problematic for several reasons.  A CWA permitted discharge may contain tens or hundreds of pollutants, but the permit typically regulates only those of most concern.  According to the Ninth Circuit,  however, the rest can now be regulated by RCRA.  Indeed, these recent decisions may open the door to using RCRA to cover pollutants  already regulated under the permit, as long RCRA imposes “stricter limits” (in the words of the Tennessee Riverkeeper court) than the CWA permit.  If the sole criterion is that RCRA endangerment claims must impose “stricter limits” than the CWA permit, plaintiffs may now have a legal basis for rewriting permits to contain whatever regulatory standards, technology requirements or procedural measures they can convince a court to impose.

ACOEL’s Alex Dunn to Serve as Regional Administrator for EPA Region 1

Posted on December 13, 2017 by Andrea Field

Last month, EPA Administrator Scott Pruitt announced the well-deserved appointment of the ACOEL’s own Alexandra Dapolito Dunn as Regional Administrator for EPA Region 1.  The press release accompanying the announcement described Alex’s exceptional qualifications and extensive environmental experience.  It also included endorsements and accolades for Alex from a remarkably diverse group of people, including senior regulators in the Region 1 states, representatives from environmental advocacy groups, and academics.

Those of us in the College both congratulate Alex and thank her for helping to raise the profile of the American College of Environmental Lawyers by somehow ensuring (we don’t know how and we don’t care) that Administrator Pruitt’s press release included numerous references to the College.  The announcement not only noted Alex’s membership in the ACOEL (and her recent election to the College’s Board of Regents), but also it included the endorsement of Alex by John Cruden and noted John’s current position as ACOEL president.

So, best of luck, Alex, and thanks for your efforts to help us achieve John Cruden’s goal of spreading the word on the ACOEL!  

Oh, Well, Some Folks Don’t Like Oysters, Anyway….

Posted on December 12, 2017 by James I. Palmer, Jr.

As a kid growing up in the hills of North Mississippi, I was introduced to oysters by my maternal Grandmother in Biloxi, down on our Coast.  I wasn’t particularly impressed with the slimy mollusks then, but my tastes changed over many years and I now enjoy them, especially in po’boys and on the half shell.

For the longest, I have considered oysters from Apalachicola Bay, Florida, to be the best along the Gulf Coast.  Large, plump, salty, everything an oyster fan likes.  But, today the oyster industry in the Bay has declined dramatically, and many Floridians believe that the ultimate fate of this historic mainstay of the economy of the area will soon be determined by the Justices of the United States Supreme Court.

The “Tri-State Water Wars” among Alabama, Georgia, and Florida are now several decades long, and never more intense.  Two interstate compacts, covering six river basins in the three states, failed to yield an “equitable apportionment” of the flows from these basins, and expired by their terms.  Follow-on negotiations fared no better.  So, in 2013 Florida sued Georgia in the Original Jurisdiction of the Supreme Court, but didn’t join Alabama.  The case was tried before the Special Master from October 31, 2016 through December 1, 2016.

At the core of Florida’s claims is the ever-growing demand for water in Georgia, principally (but not only) in metropolitan Atlanta.  Even the definition of “metropolitan Atlanta” differs among websites, so the data showing the population trends over the last 50 years also differs somewhat, but the numbers I will use for general reference show that the population of metropolitan Atlanta was 3,317,000 in 1990, 4,548,000 in 2000, 5,034,000 in 2004, and the 2010 U.S. Census recorded 5,800,000.  I’ve seen one projection of 8,000,000 by 2020.  Using these statistics purely for the sake of argument, the population of metropolitan Atlanta in 2020 – just over two years away – could have grown by over 240% in 30 years.  

Too, production agriculture in southwestern Georgia, heavily dependent upon surface water and groundwater supplies for irrigation, has also burgeoned during this same time period.  Groundwater levels in the Flint River basin have declined significantly because of what one of Georgia’s own witnesses at trial attributed to essentially lax regulatory management at the State level.  No surprise, these declines in groundwater availability have ratcheted up pressures on surface water resources in the Flint River watershed.

Thus, given these twin realities of seemingly insatiable urban and agricultural demands for water in Georgia, it’s no wonder that folks down in the Apalachicola Bay area staunchly believe that this is the principal cause of declining freshwater flows into the Bay, and, inevitably, will lead to the irrecoverable loss of the Bay ecosystem, itself.

The Special Master rendered his Report on February 14, 2017, and it was filed on March 20, 2017.  The Special Master found, as a matter of fact and law, that Florida had failed to prove its case by clear and convincing evidence, and recommended that the Supreme Court deny Florida’s claims.

Florida filed its Exceptions to the Report of the Special Master on May 31, 2017.  Georgia filed its Reply opposing Florida’s objections on July 31, 2017, and Florida filed its Sur-reply on August 30, 2017.  Amicus briefs supporting Georgia’s position have been filed by the United States (on behalf of the Corps of Engineers), the State of Colorado, and the Atlanta Regional Commission, et al.  The case has been set for oral argument before the Supreme Court on Monday, January 8, 2018.

Of the several issues before the Court, the two major ones are the “clear and convincing evidence”  burden of proof standard the Special Master imposed upon Florida and the general issue of “redressability,” which turns on the obligation of Florida to prove both substantial (some would say “irreparable”) injury and that the relief sought (a consumption cap on Georgia water use, primarily in the Flint River Basin) would, in fact, provide additional flows into Apalachicola Bay sufficient to save the ecosystem and the oyster industry.  Understandably, Georgia strongly rejects Florida’s contentions.

The cases relied upon by Georgia and the amici are, in the main, decisions in litigation between and among western states whose organic water resources laws are grounded in the doctrine of prior appropriation.  Here, the dispute is between two states whose organic water resources laws arise under the common law doctrine of riparianism (or, in modern times, regulated riparianism).  Interestingly, because the Supreme Court departed from pure riparian principles in early cases involving interstate fights over the water needs of huge urban areas like New York City, Florida contends that it is appropriate in this case for the Court to apply traditional equitable principles in addition to equitable apportionment principles that have evolved over many years of case law.  While not dismissing the argument out of hand, I think it could be a real challenge for Florida to make it stick.

Ultimately, the Court will either accept the Report and recommendations of the Special Master and dismiss Florida’s case outright, or decline to accept the Report and remand the case to the Special Master for further proceedings.  Given the deference the Supreme Court generally accords Special Masters in Original Jurisdiction cases, I think Florida, figuratively, now has to push a very heavy anchor chain up a very steep hill to stay in the fight it started.  If the State fails, locals say that the loss will likely result in a knockout blow to the oyster industry in Apalachicola Bay, which is already on the ropes.  Maybe, yes.  Maybe, no.  Maybe, not yet.  Time will tell.  Oh, well, some folks don’t like oysters, anyway….

It Ain’t Over ‘til It’s Over -- The Congressional Review Act & the Search for Zombie Regulations

Posted on December 7, 2017 by Allan Gates

Enacted in 1996, the Congressional Review Act (CRA) affords Congress the opportunity to review and disapprove final rules of federal agencies.  In the first 20 years of its existence, only one regulation was disapproved using the CRA.  In the first 100 days of the Trump administration, however, Congress invoked the CRA to disapprove thirteen separate regulations.  The White House advertised the CRA disapproval resolutions as the top legislative accomplishment of the administration’s first 100 days, proudly claiming that President Trump had signed more CRA resolutions than any other President in history.

By mid-summer most observers assumed the push to roll back Obama-era regulations using the CRA was over because the statute provides a narrow window of time for introducing resolutions of disapproval (generally 60 legislative days from the date the regulation is received by Congress), and it similarly limits the time within which expedited legislative procedures – including passage by simple majority vote in the Senate – can be used.

But wait, there’s more  – 

The window of time for introducing a disapproval resolution under the CRA begins to run on the day a regulation is submitted to Congress.  And it turns out agencies have not always been careful about sending their rules to Congress.   According to a 2014 report, hundreds of final regulations published in the Federal Register each year have never been reported to Congress.  Moreover, since the rules subject to review under the CRA are not limited to those published in the Federal Register, the report suggests there may be thousands of unreported interpretive rules, guidance documents, “Dear Colleague letters,” and the like.

Conservative activists aware of the inconsistent agency filing practices have begun to argue that all older regulations that were not reported to Congress are still subject to CRA review.  One conservative group has established a separate website, RedTapeRollback.com, proclaiming that:

“Powerful new ideas to use the CRA for older rules not reported to Congress are causing great excitement. This is a regulatory game changer!”

The website includes a database of rules it claims were not reported; and the website urges its visitors to, “Help us find and report more rules that were never submitted to Congress.”

The activists promoting use of the CRA to attack older, unreported regulations offer three rollback strategies.  First, private parties who are subject to the requirements of an older, unreported regulation could argue the regulation has never taken effect. There is certainly language in the CRA to support such an argument:

“Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress [a report containing a copy of the rule.]”

Another provision of the CRA, however, has language that may preclude a private party’s ability to obtain judicial review of claims based on the CRA:

“No determination, finding, action, or omission under this chapter shall be subject to judicial review.”

The second strategy calls for the Trump administration to identify undesirable rules that were never reported to Congress, state that the rules have never taken effect because of the agency’s failure to report them, and abandon or vacate the rules.  Under this scenario, the Trump administration would roll back undesirable rules immediately without the necessity of going through notice and comment rulemaking procedures otherwise required to repeal the rules.

The third strategy suggests the Trump administration could identify undesirable rules that were never reported, report them to Congress, and encourage Congress to adopt resolutions of disapproval.  If this occurs, Section 801(b)(2) of the CRA precludes reissuance of a disapproved rule in the same or similar form unless Congress affirmatively adopts legislation authorizing the promulgation.

It may well be that the activists’ frothy enthusiasm for expanded use of the CRA will come to very little.  It is possible, perhaps even likely, that most of the unreported rules were insignificant, unobjectionable, or even exempt from reporting and review under the CRA.  Moreover, as a practical matter it is unlikely that Congress would be willing to devote significant amounts of floor time to debate the disapproval of a large number of older, unreported regulations.  Nevertheless, a cursory examination of RedTapeRollback’s database of supposedly unreported rules cannot help but give one pause.   Think the 2010 Chesapeake Bay TMDL and EPA’s 2008 Rapanos Guidance.

Interest in use of the CRA did not end with the flurry of disapproval resolutions in the first one hundred days of the Trump administration.  At a September House Subcommittee on Regulatory Reform oversight hearing focused on agency compliance with the CRA, witnesses urged Congress to attack older regulations that were never reported to Congress.  In late October, Congress passed and the President signed a disapproval resolution invalidating an arbitration regulation adopted by the Consumer Financial Protection Bureau, an independent agency whose regulations are not ordinarily subject to Executive review and approval.

The recent surge in use of the CRA has not gone without opposition.  The Center for Biological Diversity (CBD) has filed suit to vacate a CRA resolution that nullified an Interior Department regulation limiting the methods used to hunt wolves and bears in Alaska wildlife refuges.  Among other things, CBD argues that the CRA limitation on issuance of future regulations without express approval of Congress infringes on the constitutionally protected separation of powers.  The court’s decision in the CBD case is likely to provide guidance on the reach of the language quoted above that limits judicial review of claims arising under the CRA.

Against this background it is safe to say that we have not seen the last of the CRA in the Trump administration.  As Yogi Berra once said, “It ain’t over ‘til it’s over.”


Posted on December 5, 2017 by Keith Hopson

While some still debate climate change, on 11/22/17, eight of the oil and gas industry’s biggest players signed on to a set of Guiding Principles for reducing methane emissions across the natural gas value chain.  BP, Eni, Exxon Mobil, Repsol, Shell, Statoil, Total and Wintershall, in collaboration with international institutions, NGOs and academics, drafted the Guiding Principles.

The five guiding principles are: continually reduce methane emissions; advance strong performance across value chains; improve accuracy of methane emissions data; advance sound policy and regulations on methane emissions; and increase transparency.  Click here for the entire Guiding Principles document.

It will be interesting to see if these “voluntary principles” eventually become enforceable regulations.  Likewise, it will be interesting to see if these guidelines become “industry standards” and, accordingly, whether by acquiescence, private litigation, or lender requirements, become de facto regulations.

Time will tell.

It is significant to see so many major oil and gas industry actors responsibly, firmly and publicly commit to both reduce methane emissions and advance monitoring.  Perhaps now others in the industry will be more inclined to join the responsible eight and commit to pass less gas.

The Truth about Sue and Settle that Scott Pruitt Ignores

Posted on December 4, 2017 by Jonathan Z. Cannon

Seth Jaffe’s post about EPA Administrator Scott Pruitt’s sue and settle directive is right on. As he notes, the Administrator punts on the question at the core of his holy war against sue and settle: that is, what is the evidence that sue and settle has been abused in the way he presumes?  In particular, was sue and settle systematically used during the Obama administration as a vehicle of collusion between environmental groups and sympathetic agency officials, catering to the greens through rulemaking in secret? That was the characterization advanced by the Chamber of Commerce and other pro-business and anti-regulatory groups that made sue and settle a battle cry in their war against Obama’s environmental policies. Without citing any evidence, Pruitt has proceeded as if that characterization is correct.

A careful, fact-based, analytically disciplined examination of the practice of sue and settle during the Obama administration shows that this characterization is not correct.  That examination appeared in a law review note by a former law student of mine, Ben Tyson, who went on to clerk for Chief Justice Roberts on the Supreme Court.  I recommend that anyone who is interested in this issue -- and who delights in careful research and analysis – read the entire article. But here’s a brief summary for those who don’t have the time.

Tyson’s analysis is based on eighty-eight sue and settle cases arising under the Clean Air Act, Clean Water Act, and the Endangered species act during the Obama administration.  This data set includes twenty-eight cases that were missed by the Chamber of Commerce in its 2013 report, Sue and Settle: Regulating Behind Closed Doors.  In his analysis Tyson is careful to distinguish between decision-forcing consent decrees, which simply require the agency to do what it is statutorily required to do and do not have a potentially adverse effect on public participation in rulemaking, and substantive consent degrees, in which the agency agrees to propose a particular regulatory change, with dismissal of the litigation dependent upon adoption of that change after public notice and comment. Of the total eighty-eight sue and settle suits, seventy-nine were brought by environmental groups.  But all but four of these suits by environmentalists sought decision-forcing consent decrees, not substantive outcomes. And in three of those four cases, there was at least one industry intervenor that had a right to be heard on the proposed decree.  Tyson concludes: “Sue-and-settle, when used by environmental group plaintiffs, is not principally about secret, backdoor rulemaking.” Instead, overwhelmingly, environmental groups used litigation to enforce existing statutory requirements. 

Ironically, although industry brought far fewer sue and settle suits overall (only nine compared to the environmental groups’ 79), five of those suits resulted in consent decrees with substantive terms. And there was no environmental intervenor in any of those cases to contest entry of the consent decree. Based on the data, industry used sue and settle to achieve substantive outcomes more often than environmental groups. And the total number of substantive sue and settle suits by industry and environmental groups was relatively small (9, or 10% of the 88 cases). Improving public participation is always worth attention, but one wonders what all the fuss was about.