Potential EPA ‘sue and settle’ lawsuit could mean new greenhouse regulations

Michael Bastasch | Contributor

Seven states sent a letter to Environmental Protection Agency Chief Administrator Lisa Jackson Tuesday, criticizing the agency for failing to issue new rules regarding methane emissions, a potent greenhouse gas which they argue may be linked to climate change.

The states now contend that the agency missed a legal deadline to determine whether new methane regulations are needed. The states said they are open to exploring solutions outside litigation.

If the EPA does not move to include rules on methane in its pollution rules for the oil and gas industry within 60 days, the states — New York, Massachusetts, Connecticut, Vermont, Maryland, Rhode Island and Delaware — will sue the agency in federal court to force them to do so.

This lawsuit could lead to a “sue and settle” scenario whereby the EPA simply settles with the states, and would be forced by a court order to promulgate new rules on methane.

“This letter is just one more shining example of the need for Congress to put a stop to this never-ending process of anybody and everybody suing EPA to enforce countless and ever-recurring deadlines (and have the plaintiffs’ attorneys fees paid by us, the taxpayers),” Richard Stoll, attorney with Foley & Lardner LLP who practices environmental law, told The Daily Caller News Foundation.

When the EPA misses a deadline established by law, it can be sued by any person or government entity. The problem is that many of the agency’s deadlines are difficult for it to meet, according to Stoll, leaving them open to suit by outside groups.

“This process allows ‘citizens groups’ and politicized state attorneys general to set EPA’s priorities in the face of its ever-expanding duties and its ever-dwindling resources,” Stoll said.

Increasingly, the EPA has been settling lawsuits brought by outside groups — many of them environmental organizations — and entering into consent decrees which legally binds them to engage in rule-making. In fact, over the last few years hundreds of EPA rules have been issued under court-ordered deadlines, according to Stoll.

Many of the groups repeatedly suing the agency, are environmental groups including the Sierra Club, NRDC, Defenders of Wildlife, Wild Earth Guardians, and Center for Biological Diversity.

“Sue and settle refers to a process whereby friendly advocacy groups sue federal agencies and the agencies settle the cases behind closed doors,” said William L. Kovacs, Senior Vice President of Environment, Technology & Regulatory Affairs at the U.S. Chamber of Commerce in a Congressional hearing in June.

“Only after a settlement has been agreed to does the public have a chance to provide any comments. Often this is a pointless exercise because the meaningful decisions have already been made,” he added.

In many cases, the taxpayer even pays for the attorney’s fees of these groups as part of the consent decree.

“In 2011 alone, taxpayers reimbursed these groups millions to participate in cozy sue and settle arrangements,” according to the House oversight committee.

“We may have needed action-forcing lawsuits against EPA 40 years ago when it was first getting going, but not now when we have thousands of EPA regulations on the books,” Stoll added.

One example of “sue and settle” is in regards to the EPA’s Utility MACT rule for coal and oil-fired electric generators for which the agency entered into a consent decree in 2010 with environmental plaintiffs, requiring the agency to issue such standards.

“Congress has saddled no other federal agency with such a burdensome and irrational regime, and it is time for Congress to put EPA back on a par with other agencies in this regard,” said Stoll.

However, there is a chance EPA may not want to settle and decide to fight this case, said Stoll, but it’s unclear what the agency’s course of action will be.

The EPA did not respond to The Daily Caller News Foundation’s request for comment.

The states signing the letter to the EPA were among the most affected by Superstorm Sandy, which they argue was linked to methane from the oil and gas industry.

“From severe droughts and heat waves to a string of devastating storms in the northeast over the last two years, it is becoming ever more apparent that increasing greenhouse gas pollution contributes to climate disruption in the U.S. and around the globe,” wrote the state attorneys general from New York, Massachusetts, Connecticut, Vermont, Maryland, Rhode Island and Delaware.

Reuters reports that the EPA published its final rules for pollutants in the oil and gas industry in August 2012, but did not include rules for methane, saying they would continue to evaluate the appropriateness of regulating methane.

“While it is clear that methane from oil and natural gas development contributes substantially to climate change pollution, regulators have failed to require the industry to use available and cost-effective measures to control these emissions,” said New York Attorney General Eric Schneiderman, the leading AG office in among the states in the lawsuit.

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