House Energy and Commerce Committee leaders on June 27 requested that the non-partisan Government Accountability Office (GAO) examine the U.S. Environmental Protection Agency’s periodic settlements of lawsuits that compel the agency to undertake new rulemakings, also known as “sue and settle.”
Republican leaders in both the House and Senate have particular concerns about the transparency of the settlement process, the public’s ability to comment and participate, and the impact on agency rulemakings that result from this type of litigation.
An example of this kind of situation would be an environmental group, say the Sierra Club, suing EPA about coal-fired power plant emissions, then the EPA settling with the club, in the process setting new, tougher emissions policy that the Republicans think the agency wanted to impose anyway.
“EPA regularly faces litigation relating to implementation or enforcement of statutes or of its regulations, rulemaking activities, and other actions. Several environmental statutes have provisions that allow citizens – including individuals, states, non-governmental organizations, industry, associations and other entities – to file a lawsuit against EPA challenging certain agency actions or inaction, including lawsuits relating to potential new regulations,” wrote Energy and Commerce Committee Chairman Fred Upton, R-Mich., Energy and Power Subcommittee Chairman Ed Whitfield, R-Ky., and Oversight and Investigations Subcommittee Chairman Tim Murphy, R-Pa.
The letter added: “In many instances, EPA has entered into settlements or consent decrees committing the agency to undertake significant new rulemakings subject to specific timelines or schedules, including rulemakings that may result in substantial new compliance costs. Concerns have been raised about the transparency of EPA’s negotiations and entry into such settlements, about the agency’s development of timelines and schedules, and about the ability of affected stakeholders or the public to participate meaningfully in the process before the settlements are finalized, as well as about the impacts of these citizen-suit settlements on agency regulatory processes and priorities.”
At the Energy and Power Subcommittee’s May 16 hearing on the EPA’s budget and priorities for fiscal year 2014, EPA Acting Administrator Bob Perciasepe discussed “sue and settle” concerns and what the agency is doing to improve transparency of the process and provide more information to the public and stakeholders. Perciasepe committed to posting petitions for rulemakings on the agency’s website, something committee members have previously requested.