EPA’s alleged “sue and settle” tactics have incensed Republican lawmakers and will likely be discussed when Gina McCarthy, President Obama’s choice to head the Agency, testifies this month in several Senate confirmation hearings.  The topic heated up recently with the Agency’s February 22, 2013, proposal to require 36 states to rewrite the parts of their state implementation plans (SIPs) allowing exemptions from emissions standards during periods of start-up, shutdown, and malfunction (SSM).

Continuous compliance

Sue and settle has come to refer to an out-of-court settlement between a federal agency and a plaintiff in which the government agrees to take action(s) to resolve the case.  For example, an agency will agree to rescind or amend its own rule without defending itself in court.  This sequence was the apparent outcome of a June 2011 petition in which the Sierra Club requested, among other things, that the EPA find that specific existing SIP provisions related to SSM for certain states are incompatible with the Clean Air Act (CAA).

The EPA agreed to do so.  In its proposal, the Agency said the SSM exemptions in SIPs are “inconsistent with the fundamental requirements of the CAA.”  According to the Agency, the CAA requires, and federal courts have confirmed, that SIPs must contain emissions limitations that ‘‘limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 
Should the EPA make the proposal final, the Agency would issue inadequacy determinations to the affected states, which would then have 18 months to amend the SSM portions of their SIPs to EPA’s satisfaction. 

The proposal would allow SIPs to contain an affirmative defense against enforcement actions for excess emissions malfunctions that meet specific conditions.  With an affirmative defense, a source would recognize that it is in violation of a continuous emissions requirement but would be shielded from monetary penalties for the violation.  The proposal was signed by McCarthy in her current position as EPA’s Assistant Administrator for Air and Radiation.

AG letter

On March 15, 2013, the attorneys general (AGs) of 17 states wrote to McCarthy and Acting EPA Administrator Bob Perciasepe objecting to the exclusion of affected states from the settlement talks that occurred between EPA and the Sierra Club. 

 “When EPA coordinates with nongovernmental organizations regarding how federal law should be applied and implemented in an individual state, yet excludes the state from that effort, the state and its citizens are harmed,” wrote the AGs.  “This practice is not acceptable to the states under the cooperative federalism framework set forth in the CAA.”

Those sentiments were repeated in a letter sent to McCarthy by Senator David Vitter (R-LA), the ranking member of the Senate Environment and Public Works Committee before which McCarthy will soon be appearing.  Vitter and Senator Jeff Sessions (R-AL) wrote:
“Our concerns with the Agency's sue-and-settle tactics are well documented.  These settlement agreements are often accomplished in a closed door fashion that contravenes the Executive Branch's solemn obligation to defend the law, avoids transparency and accountability, excludes impacted parties, and often results in the federal government paying the legal bills of these special interest groups at taxpayer expense.  The circumstances under which EPA has agreed to initiate this new rulemaking reaffirms a pattern and practice of circumventing transparency.”

Decades of practice

The senators add that the approach embodied in the SSM proposal runs against 4 decades of EPA practice.  “The SSM exemption has been approved by EPA since 1972 and has been a key element of most EPA-approved SIPs,” they write.

The AGs and the senators are also concerned that the 30 days the EPA provided for the public to submit comments on the proposal were inadequate, given the magnitude and implications of a final action.  Both letters requested that the Agency extend the comment period to at least 120 days. 

EPA’s proposed amendments to SSM provisions in SIPs were published in the February 22, 2013, FR. 

Click here for the Vitter/Sessions’ letter to McCarthy.

Click here for the AG’s letter.