Wednesday, July 17, 2013

12 GOP AGs File Lawsuit Related To "Sue & Settle"

Jul 16: Oklahoma Attorney General Scott Pruitt, joined by 11 other attorneys general from AL, AZ, GA, KS, MI, NE, ND, SC, UT, WY, TX, filed a lawsuit Tuesday in Federal court requesting access to documents related to the U.S. EPA's so-called "sue and settle" strategy with environmental groups. Pruitt said, "The EPA is picking winners and losers, exhibiting favoritism, at the expense of due process and transparency. They are manipulating our legal system to achieve what they cannot through our representative democracy. The outcomes of their actions affect every one of us by sticking states with the bill and unnecessarily raising utility rates by as much as 20 percent."

    The lawsuit, was filed in U.S. District Court for the Western District of Oklahoma and comes after the states filed a request under the Freedom of Information Act seeking documents related to the "sue and settle" strategy. According to a release from AG Pruitt, the agency employs the tactic as a way to settle lawsuits with environmental organizations, including Greenpeace, Defenders of Wildlife, WildEarth Guardians and the Sierra Club, without allowing state involvement. In some instances, the EPA entered a consent decree the same day a lawsuit was filed by the special interest group, suggesting prior knowledge. The agreements between the EPA and environmental groups have led to new rules and regulations for states without allowing attorneys general to enter the process to defend the interest of states, businesses and consumers. 

     Pruitt said, "This appears to be a blatant strategy by the EPA to go around the process and bend the rules to create environmental regulations that have failed in Congress. As part of our investigation into the pervasiveness of this tactic, we requested documents that the EPA has refused to produce. If the EPA is making backdoor deals with environmental groups to push their agenda on the American people while bypassing the states and Congress, we need to know." According to the release, out of the 45 settlements made public, the EPA has paid nearly $1 million in attorneys' fees to the environmental groups, while also committing to develop sweeping new regulations. One EPA consent decree led to the EPA's costliest regulation ever -- the Mercury Air Toxics Standards (MATS).

    The 12 states led by Oklahoma, filed a FOIA request in February, seeking communications between EPA officials and specific special interest groups concerning consent decrees that dictate how EPA is to implement the Clean Air Act's Regional Haze program in various states. Under the Clean Air Act, the states -- not the EPA -- design and implement plans for compliance with the Regional Haze program. States' also requested a fee waiver. According to the complaint, "Ninety-two percent of the time EPA grants fee waiver requests from noncommercial requesters who are supportive of EPA's policies and agendas, but denies a majority of fee waiver requests from noncommercial requesters who are critical of EPA." States properly asked for specific records ... (and) EPA violated FOIA's mandate."

    The release indicates that once the documents are received, the requesting states will analyze the data and evaluate the prevalence of EPA's "sue and settle" strategy to determine further action. A report on the states' findings will be disseminated to each state as well as to the news media and Congress as a component of the AGs' active involvement in state efforts to address environmental issues.
    U.S. Sen. David Vitter (R-LA), Ranking Member on the Environment and Public Works (EPW) Committee, commended the 12 Attorneys General (AG) lawsuit saying, "Looking at FOIA fee waivers, it's clear that EPA favors far-left environmentalist groups over conservative think tanks, but today's lawsuit is just another example demonstrating EPA's discrimination extends toward States, as well. We recently got the EPA to agree to completely retrain their staff on FOIA practices and issue new agency-wide guidance on FOIA practices following completion of the Inspector General investigation. However, their obstructionist tactics while trying to bend FOIA laws remains a problem, especially when they seek to block Attorneys General who clearly are acting to advance the public interest."
    On May 22, in a lengthy blog posting [See WIMS 5/22/13] the Natural Resources Defense Council (NRDC) provided a detailed response to a U.S. Chamber of Commerce report entitled, Sue and Settle: Regulating Behind Closed Doors [See WIMS 5/21/13] and various Republican charges. In general sue & settle agreements (i.e. settlements) result when environmental and citizen groups exercise the citizen suit provisions in various environmental laws passed by Congress to force EPA to meet "not discretionary" deadlines or set new deadlines when the Agency has already missed a deadline.
    In a July 16, article EPA spokeswoman Alisha Johnson told The Hill publication that, "EPA has no input or control over what parties sue the agency or what issues they focus on. Furthermore, an outside entity cannot compel EPA to take an action that it was not already required to take by law."
    Access a release from the OK AG (click here). Access the FOIA legal complaint (click here). Access the FOIA request (click here). Access a release from Sen. Vitter (click here). Access the NRDC blog posting with multiple links to referenced information (click here). Access The Hill article (click here).  [#All, #MIAll]