Op-ed on "Sue and Settle" Law Suits by Environmental Organizations

My op-ed piece on “sue and settle” law suits by environmental organization just started running in a number of newspapers.  Here’s a link to the piece in the Deseret News:



Tactic ensures EPA ignores politics; fulfills its mission

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. 95050



The contrary opinion is expressed here:  


So, here a few further thoughts.

First . .  oof – difficult to express the complicated nature of this issue in 600 words.  But even more difficult if the issue that one was asked to address gets recharacterized/refocused after one has written one’s piece.  (In the Deseret News, the issue was presented as “Is the EPA circumventing the legislative process?”)  Oh well, that’s the shakes.

Second, on the opposing opinion presented by William Kovacs – he presents the view articulated by the US Chamber of Commerce in their report and their views on the sue-and-settle cases. The framing of the issue by the paper (“is EPA circumventing the legislative process) ended up centering on what they wanted the public to focus on in their report.

Third, here are a couple reactions to Kovacs’ view point.  The US Chamber report, which Kovacs wrote the intro to, is a fairly one-sided advocacy study; but I suppose that should not be surprising.  One of the most disingenous parts of the study is its focus on cases brought by environmentalists and to exclude (via definition) from the scope of the study virtually all of the litigation and cases which mostly include polluters.  That might have put some of these cases into context – but again, the report was never designed to be a fair study, I suppose.  A second reaction is its disingenuous conclusion that EPA is deprived of discretion by such lawsuits when the US Chamber and polluters have made it their goal to limit the ability of EPA to do its job of protecting health and the environment.  A third, and final, reaction is that one could also draw a wholly different conclusion about the implications of “sue-and-settle” cases.  Rather than finding a remedy in making it more difficult for environmentalists to hold EPA accountable for fulfilling its Congressional mandates regarding environmental protection, how about providing the Agency with sufficient resources to do its job?

This last point is of course the ultimate rub of the US Chamber of Commerce’s report and Kovacs’ position – giving EPA the “freedom” to make what amounts to not much more than Hobson’s choices.  Ironically, interest groups like the US Chamber have also been instrumentally part of efforts to put EPA into the catch-22, by restricting the resources of EPA to do its job . . . and it is the inadequacy of regulatory resources which is the root cause of why environmental organizations are bringing these sue-and-settle cases in the first place.

Never a dull moment . . .

Chengdu Visit

I was in China last week for some meetings/lectures and had the opportunity to visit the Giant Panda Research Station in Chengdu, Sichuan Province.  This was my first time there, and it is an impressive facility. I must have seen at least 20-25 Giant Pandas, ranging from the very young to adults.  The animals were mostly individually housed in large enclosures that mimicked their natural habitats.  The entire station was large enough for me to wander around for more than a couple of hours.  Here’s a picture of me with several adult Giant Pandas in the back.

Of course, also lots of air pollution in Chengdu, mostly because of vehicle emissions and coal use.

John Cruden to be nominated to be Assistant Attorney General for Environment Division at US DOJ

Here is some great news for the environment.  The President is going to nominate John Cruden, currently President of the Environmental Law Institute, to be the next Assistant Attorney General for the Environment and Natural Resources Division at the US Department of Justice.  Here’s the White House announcement:

John will be taking the position previously held by Ignacia Moreno.  At Santa Clara Law School, we are particularly proud because John is a SCU Law grad.