GAO report says EPA deals with enviro groups are subject to public comment

In a report written at the request of three top Republican critics of the U.S. Environmental Protection Agency’s “sue and settle” policy, the Government Accountability Office said it found that most such settlements come out of the EPA’s clean air program.

The GAO report was released publicly on Jan. 14, but sent in December to: Rep. Fred Upton, R-Mich., the Chairman of the House Committee on Energy and Commerce; Rep. Ed Whitfield, R-Ky., Chairman of that committee’s Subcommittee on Energy and Power; and Rep. Tim Murphy, R- Pa., Chairman of that committee’s Subcommittee on Oversight and Investigations. All three have been critics of how EPA will get sued, or be threatened with a lawsuit, by environmental groups, then settle those suits ostensibly along the lines of what the environmental groups wanted in the first place. Whitfield, from a major coal-producing state, has leveled a lot of such criticism over settlements related to coal production and coal-fired power.

“Laws such as the Clean Air Act and the Clean Water Act require the Environmental Protection Agency (EPA) to take certain actions, such as issuing rules, to implement provisions of the law within certain statutorily designated time frames,” GAO said in a cover letter to the three GOP lawmakers. “In addition, some laws have provisions that allow any person or entity (including individuals, associations, businesses, and state and local governments) to file lawsuits to compel EPA to take statutorily required actions, such as issuing a rule, if it has not already done so within a statutorily designated time frame. Such lawsuits are sometimes referred to as deadline suits. When faced with deadline suits, EPA and the Department of Justice (DOJ)—which represents EPA in litigation—typically negotiate a settlement with the person or entity filing the lawsuit.

“Some members of Congress and certain sectors of the public have expressed concern that, in settling these lawsuits, EPA is committing itself to significant new rulemakings and that affected stakeholders, and the public are unable to participate in the negotiating process before asettlement is finalized. They have also expressed concern about the impact of these settlements on EPA’s rulemaking priorities. Under the Congressional Review Act (CRA), all rules, including those issued by EPA, are classified as either a major rule or a non-major rule.The CRA defines a ‘major’ rule as one that has resulted in or is likely to  result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets.”

GAO said in the report that it identified seven key environmental laws that allow citizens to file a deadline suit against the EPA and EPA and the Department of Justice (DOJ) consider several factors in determining whetheror not to settle these suits. The seven key environmental laws include, among others, the Clean Air Act and the Clean Water Act. EPA works with DOJ to decide whether to settle a deadline suit. EPA and DOJ officials stated that the factors they consider include: the cost of litigation; the likelihood that EPA will win the case if it goes to trial; and whether EPA and DOJ believe they can negotiate a settlement that will provide EPA with sufficient time to complete a final rule if required to do so.

Of the total number of major rules EPA promulgated from May 2008 to June 2013, nine were issued following seven settlements in deadline lawsuits, all under the Clean Air Act. The terms of the settlements in these deadline suits established a schedule to issue a statutorily required rule(s) or to issue a rule(s) unless EPA determined that doing so was not appropriate or necessary pursuant to the relevant statutory provision. None of the seven settlements included terms that finalized the substantive outcome of a rule. The Clean Air Act requires EPA to solicit public comments on drafts of settlements. The nine major rules were Clean Air Act rules, and EPA solicited public comments on all of the drafts.

EPA received between 1 and 19 comments on six of the settlements and no comments on one settlement. EPA determined that none of the comments disclosed facts or other considerations compelling it to withdraw or withhold consent for the settlement. “The effect of settlements in deadline suits on EPA’s rulemaking priorities is limited,” said the GAO. “According to EPA officials, settlements in deadline suits primarily affect a single office within EPA—the Office of Air Quality Planning and Standards (OAQPS)—because most deadline suits are based on provisions of the Clean Air Act for which that office is responsible. These provisions have recurring deadlines requiring EPA to set standards and to periodically review—and revise as necessary—those standards. OAQPS sets these standards through the rulemaking process. OAQPS officials said that deadline suits affect the timing and order in which rules are issued but not which rules are issued.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.