One might laugh, if the subject wasn’t so serious. EPA Administrator Pruitt issued a new Agency directive today, entitled “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements,” together with a memo explaining it. The objective of the Directive is to restrict the ability of the EPA to settle certain types of law suits, oftentimes where the Agency is in clear violation of a statutory deadline or other legal requirement. Anyway, here is a link to an op-ed that I wrote about this issue a few years ago and why I think there is no real beef to the controversy. But I am not writing about the merits of the issue here.
Why do I say that the directive is in search of a problem? Take a look at the language in the Directive laying out the factual basis of the problem it is supposed to fix.
“It has been reported . . . that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups. In some instances, EPA may have taken actions that had the effect of creating Agency priorities and rules outside the normal administrative process.”
“It has been reported?“ “EPA may have taken?” Wow. Some careful lawyering to make sure that there is no actual assertion of fact about the issue. In fact, the entire directive appears to be based on hearsay, i.e. some abstract “reporting” on the issue.
Ok, so if there is no factual basis for the problem, maybe there is at least a theoretical legal problem to solve here? Hey, we law professors always love theoretical legal problems to solve. Turns out that the issue addressed by the Directive – the possibility of an agency colluding with the other litigant, exceeding its statutory authority, or agreeing to something that it shouldn’t via a court settlement, is actually addressed by Justice Department regulations. These regulations are the result of a set of policies initiated under U.S. Attorney General Ed Meese, also referred to as the Meese Memo. (When I was a junior attorney in the Justice Department’s Environment Division, I actually had to deal with the Meese Memo.) The Meese Memo sought to address exactly the same perceived problem that is described in the Pruitt Directive and Memorandum. However, since EPA is represented in any litigation by the Justice Department, all EPA court settlements must be approved by Justice Department authorities. Therefore, any court settlements are subject to the Meese Memo regulations, which does much the same as the Pruitt directive. Mmmh. So, no theoretical legal need for the new Directive either.
I wish I could say that this is amusing. But I am not amused.