Scott Pruitt Issues Directive Blocking Settlements and Consent Decrees Shielding EPA from Protecting Public Health, Clean Air, Clean Water

Today, EPA Administrator Scott Pruitt issued a directive moving to end consent decrees and settlements that force the agency to comply with the law and its duty to protect public health and clean air and water. The directive is aimed at limiting people, communities, and organizations from taking the agency to court when it is not complying with the law or fails to enact or enforce regulations on the books. The effect of this directive will be to give the U.S. Environmental Protection Agency more time to delay public protections that enforce bedrock environmental laws including the Clean Water Act and Clean Air Act, and to discourage people from seeking justice in a court or law. Ultimately, all it will accomplish is to put the public’s health and safety at risk.

The directive would force parties into protracted litigation, even when the agency openly acknowledges that it has broken the law by, for example, missing a statutory deadline for adopting controls that would protect the public from dangerous pollutants. Prior to this directive, when a member of the public filed a claim against the government for not complying with some clear legal requirement, the government was able engage in settlement discussions with the party that brought the suit, and take responsibility for its unlawful conduct by agreeing to take the action already required by law by a certain date.

This directive would prevent or restrict the government from accepting responsibility for its illegal conduct, instead forcing both parties to engage in unnecessary litigation, putting a strain on the resources of both members of the public and the federal government, and prolonging the harms to the public that result from the agency’s failure to comply with the law. It could also have a chilling effect on parties bringing suits seeking to compel government action if they know costly and prolonged litigation will be necessary to obtain relief.

The directive also bars the agency from agreeing to pay attorney’s fees to the party that brings these suits, forcing members of the public to litigate further to recover those fees, and making it that much more difficult to hold the government accountable to the people, even where it admits that it has not complied with the law. This sets up an unfair burden to individuals and communities, especially those that are unable to shoulder the burden of costly litigation.

The following statement is from Patrice Simms, Earthjustice’s Vice President of Litigation in Washington, D.C.:

“Scott Pruitt grossly mischaracterizes deadline suits that people, communities, and organizations pursue to force the agency to uphold its duty in protecting people’s air and water. This directive forces EPA to delay benefits of clean air and clean water protections, even where the agency admits that it has not followed the law, while at the same time costing the federal government more for the unnecessary expenditures of litigation resources. In the end, it is just another way for Pruitt’s industry friends to continue to profit off their pollution, while local communities pay the cost with their health and well-being.”

Earthjustice example of settlements reached with the EPA:

• Fairbanks, Alaska residents sue the EPA under the Clean Air Act for failing enforce pollution controls for the city

Resources for reporters:

• Read the EPA directive issued today.
• Read Government Accountability Office (GAO) 2014 report, “Environmental Litigation: Impact of Deadline Suits on EPA’s Rulemaking Is Limited”
• EPA already posts all notices of intent to sue and related lawsuit materials: https://www.epa.gov/no
• The Department of Justice’s Environment and Natural Resources Division (ENRD) posts proposed settlements and consent decrees on its website and publishes in the Federal Register for 30-days of public comment: https://www.justice.gov/enrd/consent-decrees
• Read EPA’s enforcement settlements.