EPA Directive Provides Additional Opportunities for Stakeholder Participation in Consent Decree Negotiations

On October 16, 2017, EPA Administrator Scott Pruitt released a directive that instructs the agency to follow new procedures related to the settlement of lawsuits against the agency. Specifically, the directive requires EPA to:

  • Publish online any notices of intent to sue that it receives from potential litigants.
  • Publish complaints and petitions in which it is named as a defendant.
  • Notify states and regulated entities affected by a complaint or petition naming EPA as a defendant.
  • Take appropriate steps to achieve participation of affected states and regulated entities in the negotiation of a consent decree or settlement.
  • Seek to receive the concurrence of any affected states or regulated entities before entering a consent decree or settlement.
  • Provide a searchable online list of settlements and consent decrees that currently govern agency action.
  • Not enter a consent decree that a court would have lacked the authority to enter, or that converts an otherwise discretionary duty of the Agency into a mandatory duty to issue, revise, or amend regulations.
  • Seek to exclude the payment of attorneys’ fees to any plaintiff or petitioner with whom EPA settles.
  • In the event a settlement includes a deadline for issuing a final rule, allow sufficient time before the deadline for interagency review, notice and comment, and consideration of comments.
  • Post public comments online.
  • Explain publicly the statutory basis and terms of  any proposed settlement agreement or consent decree.
  • Provide a public comment period of at least 30 days on proposed settlements or consent decrees.

While many of these items are already required by existing law or EPA policy for some settlements, the directive signals an opportunity for increased participation in EPA settlements and consent decrees across the board, especially with respect to regulated parties and states. Not only does the directive restate existing notice-and-comment procedures, it also specifically directs EPA to solicit the input of states and industry, and—controversially—seek the “concurrence” of affected states and regulated parties.