New Directive Will Force Trump’s EPA To Scrutinize Deals Cut With Activist Groups

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Michael Bastasch DCNF Managing Editor
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Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a directive Monday to curb an Obama-era legal practice exploited by environmental groups to advance their policy goals.

The directive is part of Pruitt’s push for “cooperative federalism” that respects the role of states in many areas of environmental regulation. Pruitt said his order would put an end to “sue and settle” tactics going forward, which often saddle states with new regulatory obligations and costs.

Pruitt also tasked the agency with compiling a list of operative court-approved consent decrees with outside groups, often environmental activists.

“This will assist the agency and the public in being aware of the ongoing impact of past settlements,” EPA spokeswoman Liz Bowman told The Daily Caller News Foundation.

“We are always open to suggestions from stakeholders and the broader public as to areas where we might need to examine what options are available to take a different course,” Bowman said.

The EPA is likely operating under numerous consent decrees with outside groups to change statutory deadlines and issue regulations. The agency is also likely to face more “sue and settle”-type lawsuits in the future for missing statutory deadlines.

But the directive will also force Pruitt to scrutinize “sue and settle”-type lawsuits brokered under his watch. In fact, Pruitt’s EPA defended at least two consent decrees in court, both involving North Dakota.

No SO2 For You

Six states, led by North Dakota, appealed their lawsuit in March against a consent decree between the EPA and a coalition of environmental groups to give regulators seven years to classify different regions of the country as in compliance or not with sulfur dioxide regulations.

The appeal stems from a 2013 lawsuit filed by The Sierra Club and the Natural Resources Defense Council against the Obama administration for not issuing new sulfur dioxide (SO2) standards on time.

EPA lawyers and environmentalists came to an agreement behind closed doors after telling the states for six months that no agreement could be reached.

The Clean Air Act allows outside groups to sue the EPA for missing statutory deadlines. In this case, federal law required the EPA to review SO2 standards every three years, but the consent decree extended that to seven years.

North Dakota’s coalition sued to stop the consent decree. The states argued that the consent decree was illegal since it changed federal law and put obligations on the states without their consent — interestingly enough, then-Oklahoma Attorney General Pruitt signed an amicus brief in support of North Dakota.

That case didn’t go in the states’ favor, so they appealed their case in 2017, probably thinking the Trump administration would not defend the EPA’s deal with environmentalists.

However, Pruitt’s EPA defended the consent decree. The 9th Circuit appeals court ruled against North Dakota, saying the decree “did not modify the EPA’s statutory authority, nor did it affect or bind the several states that intervened in the suit and objected to the settlement.”

Judge John Clifford Wallace wrote a blistering dissent, arguing that the court rubber stamped a consent decree that allowed the EPA to unconstitutionally change federal law.

“The separation of powers doctrine forbids our amending the statute—only the Congress can do that,” Wallace wrote. “The EPA can return to the legislative branch—but should not be allowed to misuse the judicial branch.”


North Dakota sued to stop a court-approved consent decree between the EPA and environmentalists from December 2016 regarding the Resource Conservation and Recovery Act (RCRA).

North Dakota argued that RCRA gives states primacy in regulating solid waste from oil and gas production, and the consent decree could upend the state’s rigorous regulatory regime.

The state filed its appeal of the 2016 consent decree in August, once again likely under the impression the Trump administration would change their mind. The EPA has defended the consent decree.

The consent decree “would force North Dakota to sit on the sidelines and wait while U.S. EPA evaluates the adequacy and effectiveness of the current State solid waste programs” and “only allow North Dakota to participate after U.S. EPA has already made the critical initial decision that the regulations must be revised,” reads North Dakota’s legal filing, obtained by The Daily Caller News Foundation.

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