How polluters are writing the rules at the EPA
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A few weeks ago Environmental Protection Agency chief Scott Pruitt boasted that he had issued a directive to stop “sue and settle” agreements at the agency. The “sue and settle” mantra has been a dog whistle for the far right, used by Republicans to symbolize how environmental groups are supposedly unfairly dictating environmental policy for the federal government. 

The truth is that when lawsuits settle, they merely require agencies to meet existing legal requirements to protect things like the air we breathe, the water we drink and the wildlife we value. And that means industries can’t pollute as they see fit — which often leaves polluters, and polluter cheerleaders like Pruitt, crying foul.

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The main complaint from Republicans in Congress and other right-wing quarters is that “sue and settle” deals allowed environmental groups to secretly dictate policy during the Obama era. But the truth is that the vast majority of settlements occurred only after many years of hard-fought litigation, and — as the GAO explained in two reports — those settlements almost never forced substantive changes in policy.

 

Contrast that with what’s happening at Pruitt’s EPA.

From undoing limits on toxic effluent discharges from power plants to dismantling the Clean Power Plan and the Clean Water Rule, special interests have achieved huge, substantive reversals in policy since President Trump and Pruitt came to power. A few weeks after secretly meeting with Dow Chemical, Pruitt reversed the EPA’s own scientific recommendation and allowed the pesticide chlorpyrifos to stay on the market. And after receiving a letter from Dow in April asking the EPA to stop its assessment of the impacts of pesticides on endangered species, Pruitt obliged.

 In the sense that Pruitt is allowing special interests to dictate policy and make changes to policy on the substance, he has “settled” far more than any other administrator of the EPA at a similar point in an administration. The big difference, of course, is that he doesn’t even wait for industry to win in court, or even necessarily file a lawsuit. He just does what industry tells him to do, before the ink’s even dry on their requests.

Instead of “sue and settle,” let’s call Pruitt’s approach “pander and surrender.”

As just one example, in April the Utility Water Act Group submitted a petition to Pruitt under the Administrative Procedure Act to repeal effluent guidelines that would have reduced the amount of toxic heavy metals entering our waterways by 1.4 billion pounds each year. Within weeks Pruitt accepted the petition and moved to repeal these critical, lifesaving safeguards.

By contrast, I’ve filed several petitions under the APA on behalf of the Center for Biological Diversity over the years, and we’d routinely have to wait three to five years just to have the opportunity to challenge, in court, the agency’s unreasonable delay in response to the petition. Responding to an APA petition within weeks is probably a record during the 70-plus-year-history of the Act. 

Likewise, having an agency change course 180 degrees following the receipt of a letter — or after holding a single meeting — is about as likely as finding a unicorn on the National Mall.

I can’t think of a single instance in 40 years where an environmental organization wrote a letter and was able to radically change environmental policy. And yet Pruitt’s EPA was practically tripping over itself to surrender to Dow’s demands this spring to halt the analysis of pesticide effects on endangered wildlife. Perhaps the $1 million donation that Dow Chemical gave to Trump’s inauguration helped improve its chances of having its requests accepted with so little effort.

Pruitt pretends that he wants to ditch so-called “sue and settle.” Court settlements are a typical outgrowth over legal challenges that are available to citizens, nonprofits and yes, even industry, when they don’t like what the government is doing (or not doing). These cases play out in court, within the public eye and usually through a transparent process. 

The legal process can be lengthy, complicated and imperfect, but it usually works. I’ll take it any day over the system Pruitt has enacted — one that does its best to do what the polluters want and leaves the rest of us to choke on the results. 

Brett Hartl is government affairs director at the Center for Biological Diversity. The author has no financial or lobbying relations with the subjects raised in this piece. 


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