Posted on November 27, 2017 by Seth Jaffe
EPA Administrator Scott Pruitt earlier this month issued a Directive prohibiting the practice of “sue and settle.” He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.” They are two very strange documents.
As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support. These include: (1) making more information available to the public about notices of intent to sue and filed complaints; (2) involvement of affected states; (3) maintenance of a data base of citizen suits; and (4) providing a public explanation and rationale for settlement of citizen suits; and (5) providing opportunities for public comment, even where not otherwise required by law.
So far, so good. However, at a certain point, the Administrator seems to have gone off the rails. First, one final substantive point – the Directive purports to forbid the payment of attorneys’ fees in any settlement, on the ground that, in a settlement, there is no “prevailing party.” Of course, if a citizen’s group has a meritorious claim, why would it give up its claims to attorneys’ fees?
What’s really strange about the documents, though, is that they make no effort to demonstrate that there has been such a thing as “sue and settle.” Instead, the Directive merely states that:
“It has been reported, however, that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups.”
The Administrator pledges that the “days of this regulation through litigation, or ‘sue and settle’ are terminated.”
The Memorandum is even better, citing to the Federalist Papers and the correspondence of Thomas Jefferson. I’m almost persuaded that this is the greatest threat to the American Way of Life since the fluoridation of water. Far be it from me to compare the Administrator to General Jack D. Ripper, but this is what first came to my mind after reading these documents.