by Mitchell J. Klein

In a memo to agency leadership sent earlier this month, EPA Administrator Michael Regan rescinded practices that were instituted by one of his Trump-era predecessors, Scott Pruitt, to eliminate what has been referred to by some as “sue and settle” tactics.

While the settlement of lawsuits is, of course, a common practice, many conservatives believed that the Obama-Administration’s EPA was deliberately short-circuiting the political and/or administrative process in order to achieve certain environmental ends. This was supposedly being accomplished by the EPA encouraging the filing of lawsuits on politically contentious issues and then agreeing to settlement terms without an active public process, which in turn resulted in actions that the EPA actually wanted. The EPA could then claim it had no choice but to take the course of action involved, as it was subject to judicial orders. Regan said in the memo that the Pruitt policy to eliminate that practice was misguided.

In Pruitt’s directive, he had outlined several steps he said would prevent the agency from engaging in sue and settle practices, including several that were already in place, such as publishing notices of intent to sue online and posting consent decrees in the Federal Register. Other actions included contacting any states and regulated entities that may be affected by any proposed settlements and holding public hearings about them.

Regan’s memo states that the Pruitt memorandum and directive gave “little weight to the well-understood value of settlements in appropriate cases”. To protect against abuses and help ensure that the EPA is not deliberately “giving away the store”, Regan’s new memo adds protections to make sure the public is involved before any judicial settlement is offered, such as making proposed settlements available for public review and comment after they have been conditionally approved by government decision-makers.