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Con: Tactic ensures EPA ignores politics; fulfills its mission

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Tseming Yang
December 19, 2013

EDITOR’S NOTE: The writer is addressing the question, “Does EPA’s sue-and-settle policy circumvent the legislative and regulatory process?”

SANTA CLARA, Calif. -- “Sue and settle” is the ominous phrase that has been attached to cases where an environmental organization sues a federal agency, such as the Environmental Protection Agency, and then settles the matter without going through a full-blown trial.

These tactics, while not ideal, are important to our environmental system because they hold agencies like EPA accountable for the important regulatory work they are required to do by law, but sometimes do not undertake because of politics or other reasons that the laws do not accept as a basis for delay.

It’s true that litigation is rarely optimal for good policy-making. When agencies avoid resolution of important environmental policy issues through unreasonable delay or other illegitimate means, however, they also avoid public accountability for their responsibilities.

Judicial intervention then becomes necessary to prompt them to do what they should be doing anyway. Only after agencies have followed the regulatory process required by law, rather than avoiding it, can the public, green groups, polluters and others scrutinize and debate the merits of “green policies.”

There is nothing nefarious about “sue and settle.” In the American legal system, the reality is that most cases—from simple slip-and-fall personal-injury suits to complex environmental enforcement actions—are settled to avoid the cost and uncertainties of trial.

“Sue and settle” cases usually involve EPA’s failure to take actions legally required by Congress, such as developing regulations by a certain deadline. When an agency knows that it is virtually certain to lose, as is characteristic of these cases, and the issues involved are serious environmental health or pollution problems, it makes little sense for the agency to run up legal costs and waste staff time just to delay the inevitable.

Take one environmental regulation pushed for by the American Lung Association: the mercury and air toxics regulation. It was adopted in 2011 to solve power-plant emissions of toxic substances like mercury and other pollutants that are hazardous to human health.

Polluters, who are vigorously fighting this regulation in the courts now, have argued that compliance costs will run into several billion dollars for the industry as a whole.

What is usually not mentioned is that the regulation will also prevent up to 11,000 premature deaths annually and save up to $90 billion in quantifiable health care costs each year.

Regardless of whether one agrees or disagrees with the regulation, the public process to promulgate the air toxics regulation has allowed everyone to scrutinize the agency’s decision and permitted those who object to get their day in court.

Without the American Lung Association’s original 2008 “sue and settle” lawsuit, such a public process might not have happened for a long time.

Polluters say their objection to “sue and settle” is all about “transparency”—the possibility that agencies like EPA might do something untoward in the settlement with less accountability than going through regular agency processes.

Such criticism seems ironic given that EPA settles litigation, such as enforcement actions, with polluters all the time, and judges must frequently approve environmental settlements.

More importantly, the result of such a lawsuit is almost always a very rigorous and very public rulemaking action in which all stakeholders can participate, contrary to what these suits typically forestall—unilateral and opaque agency commitments to inaction.

At the heart of the issue, however, is the fact that these settlements are primarily about actions that agencies are already legally required to take. By bringing these cases, environmental organizations seek to hold EPA accountable for properly protecting the health and environment of Americans.

Congress gave the public the right to sue, as a last resort for ensuring accountability for federal agency responsibility to protect the health and environment of all Americans. And that is what these cases do.

Tseming Yang is professor of international environmental law at Santa Clara University, and a former deputy general counsel of the U.S. Environmental Protection Agency. Readers may write to him at SCU Law, 500 El Camino Real, Santa Clara, Calif. 95053; email: tyang@scu.edu.



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