EPA’s Administrator, Scott Pruitt, today took additional measures to reduce the number of “sue and settle” types of litigation filed by third parties against the Agency. The practice of sue and settle has been criticized by such groups like the U.S. Chamber of Commerce which has characterized the practice as
[W]hen a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process. The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties. These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.
Citing to Constitutional principles of separation of powers, due process, and cooperative federalism – including citing James Madison and Federalist Papers No’s. 47 and 51- Pruitt reinforced his views on the importance of (1) legal process, (2) adherence to the rule of law, and (3) cooperative federalism. The practical effect of the directive involves the following procedural changes:
The Administrator’s directive and supporting memo can be found here.