Grassley: Administrator Pruitt’s directive marks a strong step toward ensuring that states and American job creators have a seat at the table
Nov 01, 2017
Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
On “Sue-and-Settle” Changes at EPA
November 1, 2017
Last month, Environmental Protection Agency Administrator Scott Pruitt issued a directive to all agency employees that prohibits so-called “sue and settle.” This is good news for good government.
Most of us here are familiar with this term. These are tactics whereby the EPA has, in the past, resolved certain lawsuits against it through agreements negotiated behind closed doors with politically favored interest groups.
As we saw under the Obama administration, some of these agreements committed the EPA to take far-reaching regulatory action, all without an adequate opportunity for those most impacted to have a seat at the table.
Today, I come to the floor to applaud Administrator Pruitt’s leadership in working to end these tactics, which make a mockery of laws that Congress put in place to ensure a transparent and accountable regulatory system.
The commonsense reforms outlined in Administrator Pruitt’s directive will, no doubt, help restore transparency and accountability. And, these reforms should stand as a prime example for all federal agencies to follow.
Accordingly, I call upon President Trump to use his full authority to ensure that similar reforms are adopted across the administration.
Regulatory decisions that affect key parts of our economy should be made in an open, transparent, and accountable manner. But as we’ve seen with sue and settle, Washington bureaucrats and their interest group pals would prefer to do things their own way.
It works like this: First, an interest group sues a federal agency, claiming the agency has failed to take regulatory action required by law. Through the lawsuit, the interest group seeks to compel the agency to take action by a new, often-rushed deadline. These plaintiff-interest groups often share a common regulatory agenda with the agency they sue, such as when an environmental group sues the EPA or the Fish and Wildlife Service.
Instead of challenging the lawsuit, the agency and interest group enter into negotiations behind closed doors to produce either a settlement agreement or consent decree committing the agency to take regulatory action.
Noticeably absent from these negotiations are the very parties who will be most impacted, such as farmers, manufacturers, and even the states themselves that will be charged with enforcing the regulation.
In 2010, for example, an environmental interest group sued the Obama administration EPA to force the agency to revise certain wastewater regulations.
Oddly enough, the same day that the lawsuit was filed, the plaintiff interest group submitted a consent decree already signed by the EPA, which committed the agency to take prompt regulatory action. Such a scenario should raise serious concerns about how truly adversarial these lawsuits and negotiations really are.
To add insult to injury, regulations that have resulted from sue and settle tactics impose tremendous costs on the American economy.
According to the American Action Forum, from 2005 to 2016, twenty-three sue and settle regulations resulted in a cost burden of $67.9 billion, with $26.5 billion in annual costs. Sixteen of the rules imposed paperwork burdens on American job creators of more than eight million hours.
Now just think about that. Nearly $70 billion in regulatory costs were imposed on American business owners, manufacturers, and farmers—all without due regard for transparency and the normal rulemaking process required by law.
Decades ago, Congress enacted the Administrative Procedure Act to ensure transparency, accountability, and public participation in federal rulemaking. The APA has been described as the citizens’ “regulatory bill of rights.”
A pillar of the APA is the notice-and-comment process, which requires agencies to notify the public of proposed regulations and respond to comments submitted.
Rulemaking driven by sue and settle tactics, however, frequently results in re-prioritized agency agendas and rushed deadlines for regulatory action. This renders the notice-and-comment process a mere formality.
It deprives regulated entities, the states, and the public of sufficient time to have any meaningful input on final rules. The resulting regulatory action is driven not by the public interest but by special interest priorities.
Sue and settle tactics also help agencies avoid accountability for their actions. Instead of having to answer to the public for controversial regulatory decisions, agency officials will simply point to a court order and say their hands were tied.
The American people deserve better.
But don’t just take my word for it.
The Environmental Council of the States—a national non-profit, non-partisan association of state and territorial environmental agency leaders—adopted a resolution in 2013 entitled “The Need for Reform and State Participation in EPA’s Consent Decrees which Settle Citizen Suits.”
“[S]tate environmental agencies are not always notified of citizen suits that allege U.S. EPA’s failure to perform its nondiscretionary duties, are often not parties to these citizen suits, and are usually not provided with an opportunity to participate in the negotiation of agreements to settle citizen suits[.]”
ECOS further resolved that “greater transparency of citizen suit settlement agreements is needed for the public to understand the impact of these agreements on the administration of environmental programs[.]”
I agree. We need more transparency. More accountability. And more voices at the table.
I’m happy to say that this administration is working to accomplish just that. Thanks to Administrator Pruitt, and in his own words, “the days of this regulation through litigation are terminated.”
His directive puts a swift end to sue and settle tactics at EPA. It does so by adopting commonsense reforms to promote transparency and public participation in the regulatory process.
It requires the publication online of notices of lawsuits filed against the EPA. It requires the EPA to reach out and notify any states or regulated entities who will be affected by a lawsuit.
It requires the EPA to seek the agreement of any affected states or regulated entities before the agency can enter into a consent decree or settlement agreement.
Further, it prohibits the EPA from entering into any consent decree or settlement that converts a discretionary duty of the agency into a mandatory duty to issue, revise, or amend a regulation.
Most importantly, it requires the EPA to post online for public comment any proposed consent decrees or settlement agreements before they’re entered by a court.
These and other reforms in Administrator Pruitt’s directive mark a strong step toward ensuring that states and American job creators have a seat at the table when regulatory decisions are made.
Before I close, I’ll add just one more thing. Earlier this year, I introduced the Sunshine for Regulatory Decrees and Settlements Act (S.119). This bill would make permanent the very types of reforms outlined in Administrator Pruitt’s directive.
It would ensure that future administrations can’t simply roll back the great work that Administrator Pruitt is doing.
I’m pleased to hear that the House of Representatives just passed the companion bill, introduced by Congressman Doug Collins. We’ll continue our work to build bipartisan support here in the Senate for this commonsense legislation.
But today, I urge President Trump to move forward with the example set by Administrator Pruitt. There is simply no reason why these reforms should be limited to just the EPA.
Transparency and public participation are core elements of a more accountable government. I applaud Administrator Pruitt’s directive, and I urge the President to promptly see to it that similar reforms are implemented across the administration.