Pending ‘Sue And Settle’ Lawsuit Threatens States, Coal Power

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Michael Bastasch DCNF Managing Editor
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The Environmental Protection Agency and politically connected activist groups have proposed a legal settlement that may ignore legal protections afforded to states under federal law and could force the closure of more coal-fired power plants across the country.

Environmentalists and EPA officials will likely hail the deal as a huge victory, but the details behind the legal settlement shows how states were cut out of the process as a deal was cut behind closed doors.

North Dakota has taken the lead among states opposing the proposed settlement between the EPA and environmental groups. States argue that the proposed consent decree allows EPA to ignore the law and reclassify parts of the country as in violation of Clean Air Act solely based on the fact there is a coal plant that emits certain levels of sulfur dioxide.

“They can’t make that settlement because it violates the Clean Air Act,” Paul Seby, special assistant attorney general of North Dakota, told The Daily Caller News Foundation.

The EPA and its environmentalist allies, however, argue that the consent decree is permissible because the “consent decree was vigorously negotiated at arms length by sophisticated parties through a process that included the Plaintiff-Intervenors, procedural fairness is present,” according to government legal filing provided to TheDCNF by the EPA. The legal filing also says that the consent decree will force the EPA to carry out its obligations under the Clean Air Act.

“The proposed consent decree is the result of a complex, half-year-long negotiation process carried out in good faith and at arm’s length among well-informed parties,” Sam Hirsch, acting assistant attorney general at the Justice Department, wrote in a legal filing.

Environmentalists at the Sierra Club and the Natural Resources Defense Council sued the EPA in December 2013, arguing the agency failed to rule whether some 3,000 U.S. counties were in compliance with national ambient air quality standards, or NAAQS, for sulfur dioxide.

A North Dakota-led coalition of states filed suit shortly afterward. The states argued that forcing the EPA to make new NAAQS designations violated the clear process set forth by the Clean Air Act and put new burdens on states without their consent.

For months, however, no settlement could be reached between all the parties involved. But in May, the states received some surprising news: the EPA had reached a separate settlement with environmental activists.

Seby wrote in court filings on behalf of the states that the “States were only made aware by [Sierra Club’s] counsel on May 6th that [environmentalists] and EPA had been engaged in settlement discussions to develop the proposed Consent Decree apart from the… States and that the parties were close to finalizing the terms of a settlement.”

“Despite these efforts, the parties were unable to find common ground for a global agreement,” the DOJ said in its court filing on behalf of EPA. “EPA and Sierra Club, however, saw an opportunity to resolve Sierra Club’s claims on mutually agreeable terms, and these parties subsequently held calls to negotiate potential settlement terms in which the Plaintiff-Intervenors did not participate.”

This agreement would force the EPA to redesignate the 3,000 counties under NAAQS, but with an added wrinkle. The consent decree said counties would be violating NAAQS if they contained coal plants that “emitted more than 16,000 tons of [sulfur dioxide] in 2012, or emitted more than 2,600 tons of SO2 and had an annual average emission rate of 0.45 lbs [SO2 per million British thermal units] or higher in 2012.”

Basically, a county would be violating federal law if it has a coal plant that emitted high amounts of sulfur in 2012 — regardless of how much its emissions have improved since. This would force such plants to install pollution control costly emissions control technology or shut down.

“To prescribe the types of sources located in a certain area that must be designated violates CAA,” Seby wrote in his court filing. “CAA… does not say that designations can be based on the mere presence of very specific and large emitting sources of SO2 in a certain area.”

Conservative groups and Republican lawmakers have labeled many legal settlements between the EPA and environmental activists as “sue and settle” lawsuits.

“Sue and settle” happens when an activist group sues the EPA for missing a regulatory deadline to issue a new rule. Instead of fighting the case, the EPA will simply settle with activists who then get their attorneys’ fees paid for by taxpayers.

The practice gives the EPA political cover when issuing costly regulations and allows eco-activists to advance their agenda — all while potential critics of the settlement are locked out of the process.

In this sulfur case, the EPA came to a settlement with environmentalists behind closed doors. In fact, the states were only made aware of the deal after the key terms had already been hashed out.

But more interestingly, the groups the EPA reached an agreement with have been accused by conservatives and lawmakers as having inappropriately cozy ties with federal officials.

Emails released by the Energy & Environment Legal Institute suggest that the Sierra Club, the main plaintiff in the NAAQS case, enjoys a cozy relationship with EPA officials and may have used such coziness to shape federal regulations on the coal industry.

The NRDC, also a plaintiff in the lawsuit, is currently being invested by Congress for its role in crafting EPA regulations that cut carbon dioxide emissions from coal plants. Media reports have shown that NRDC work served as a blueprint for the EPA’s power plant rule. Furthermore, emails show that NRDC has worked closely with top EPA officials.

“The EPA is clearly allowing the NRDC to assist in drafting federal regulation, with a heavy-hand in numerous economically destructive policies,” said Louisiana Republican Sen. David Vitter, one of the lawmakers investigating NRDC. “This influence is putting American families and future generations on the hook for years of lost opportunity and regulatory burden.”

The Justice Department did not respond to TheDCNF’s request for comment.

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