North Dakota Uses EPA Admin’s Own Words Against His Agency In Court

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Michael Bastasch Contributor
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North Dakota sent a letter to the U.S. Court of Appeals for D.C., arguing a recent Environmental Protection Agency’s (EPA) directive to curb so-called “sue and settle” lawsuits should apply to their legal case against the agency.

“[T]he recently issued Pruitt Directive and Pruitt Memorandum support the positions taken by North Dakota in this case and the reversal of the District Court’s decision below,” North Dakota wrote in their letter sent on Thursday.

EPA Administrator Scott Pruitt issued a directive in mid-October to not enter into settlements with outside groups that commit EPA to going beyond its statutory authority.

Pruitt’s order took aim at a common legal practice at EPA: settling with environmental groups challenging the agency in court for missing statutory deadlines.

Conservatives have called the practice “sue and settle,” and argue it gives activists control of EPA’s agenda. Critics also say “sue and settle” commits EPA to issuing new regulations without input from states or regulated industries.

“The days of regulation through litigation are over,” Pruitt said.

North Dakota is locked in a legal battle over a settlement EPA entered with environmental groups to potentially change the way hazardous waste from oil and gas drilling sites is regulated.

Now, the state is using Pruitt’s “sue and settle” directive against the agency in court.

In August, North Dakota filed an appeal to challenge a 2016 settlement between EPA and environmental groups — an agreement Pruitt’s EPA has defended in court.

The state argues the 2016 settlement “would force North Dakota to sit on the sidelines” while EPA evaluates regulations on hazardous waste from oil and natural gas drilling. The state wants a seat at the table if EPA plans on changing regulations.

EPA’s “sue and settle” directive “aligns with North Dakota’s argument that the settlement in this case imposed obligations on U.S. EPA that go beyond what is required by the applicable requirements of Subtitle D of the Resource Conservation and Recovery Act,” reads the complaint, which was obtained by The Daily Caller News Foundation.

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 complaint from August.

RCRA gives states the primary role of regulating oil and gas hazardous waste, but state plans are subject to EPA review.

Environmentalists argue EPA needs to update its rules for hazardous, which it hasn’t done since the 1980s. Activists say EPA needs to take into account new drilling techniques, like hydraulic fracturing.

Oral arguments for North Dakota’s case are scheduled for early November.

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