Longer, Costlier Legal Battles Ahead as EPA Vows No Settling

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Trump’s EPA Swears Off Settling Lawsuits with Environmentalists Proposed Alaska Gold Mine Moves Closer to Reality

By Jennifer Lu

EPA Administer Scott Pruitt’s refusal to settle environmental lawsuits means longer and more expensive legal battles, observers say.

Environmental groups often sue the Environmental Protection Agency when it misses a legal deadline to take action or review existing pollution standards, and cases tend to be open-and-shut against the EPA, they say. Rather than go through a lengthy court battle in these situations, settling saves time and resources.

“The settlement process is quite efficient from everybody’s standpoint,” Hope Babcock, director of the Institute for Public Representation Environmental Law Clinic at Georgetown University, told Bloomberg Environment.

Pruitt announced Oct. 16 that the EPA would no longer settle court cases brought by environmental groups seeking to force the agency to take overdue actions.

If the government pursues litigation to the end, it will also have to shell out for the prevailing party’s attorney fees, Justin Savage, a partner in Sidley Austin LLP’s Washington, D.C., office, told Bloomberg Environment. Savage was a senior trial attorney at the Justice Department between 2004 and 2013.

“If you’re on the hook for attorneys’ fees, it’s better to settle your way out than fight over it,” Savage said.

One-Way Lever

Given that litigation can be a more expensive option for the agency, Pruitt’s umbrage over the practice, known as sue-and-settle, may be less about settling lawsuits and more about avoiding environmental policies he doesn’t like, Coby Dolan, senior legislative counsel at Earthjustice, told Bloomberg Environment.

For one thing, the EPA doesn’t settle as often as Pruitt makes it seem, Dolan said.

In fiscal year 2016, the EPA settled nine of the 71 cases in which it was a defendant, according to the Justice Department’s annual statistical report.

The agency also has no qualms about settling with industry groups, Dolan said. “A lot of this feels like show, claiming a problem that doesn’t really exist.”

In May, the EPA settled with Pebble Limited Partnership over a lawsuit filed over a proposed gold, copper and molybdenum mine in Alaska’s Bristol Bay. The partnership, a wholly owned subsidiary of the Canada-based Northern Dynasty Minerals Ltd ., had argued the Obama administration colluded with three federal advisory committees to arrive at a predetermined conclusion that handicapped the proposed mine.

While industry groups also sue the EPA, they aren’t trying to force the agency to enforce rules, Dolan said, but to prevent it from taking action.

“It’s a one-way lever,” Dolan said. It makes “the playing field a lot less even.”

Kieran Suckling, executive director at the Center for Biological Diversity, said that litigating everything would take EPA staff away from environmental research and protection, with environmental groups suing the agency getting blamed for the holdup.

“It’ll bog everything down,” Sucking said. “The whole thing is completely cynical.”

Who Decides to Settle?

Savage said he wanted further clarification from the EPA about its directive, which said that the EPA should seek approval from states and industry stakeholders before agreeing to a consent decree or settlement. That’s a decision that should be made by the EPA and Justice Department, he said.

“It sends a signal that client agencies of the department get to make the call whether to settle or litigate,” Savage said. “And that’s just not how it works under the law.”

William Yeatman, a senior fellow at the free market advocacy group Competitive Enterprise Institute, told Bloomberg Environment that legal deadlines were the underlying problem behind sue-and-settle. Because the EPA missed so many deadlines, it has to funnel energy and resources into addressing its deadlines.

“The sue-and-settle is a means for environmental groups to dictate the agency’s priorities,” Yeatman said.

Story has been updated with additional reporting.

To contact the reporter on this story: Jennifer Lu at jlu1@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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