Oklahoma Attorney General Scott Pruitt joined Republican colleagues from 11 other states Tuesday in filing a lawsuit against the Environmental Protection Agency related to what they call the agency's “sue and settle” strategy for regulation.
Pruitt and the other attorneys general sent an information request in August asking the EPA for records that could show whether the agency was encouraging environmental groups to sue it for missing regulatory and statutory deadlines.
The practice, dubbed “sue and settle” by Pruitt and other critics of the Obama administration, contends the EPA settled lawsuits brought over missed deadlines with consent decrees that are stricter than the original regulations.
“It's a regulation-through-litigation type of initiative,” Pruitt said at a news conference in Oklahoma City. “Friendly lawsuits apparently are being encouraged. We were concerned because our due process, as a state and citizens of Oklahoma, were potentially being affected adversely. And not just Oklahoma, but 11 other states.”
Pruitt's lawsuit, filed in federal court in Oklahoma City, asks the EPA to fulfill an amended version of a Freedom of Information Act (FOIA) request filed in August. That request sought details about communications agency officials may have had with environmental groups who later sued EPA. It covered more than 80 health, labor and environmental groups and 45 consent decrees related to the Clean Air Act, the Clean Water Act and other federal laws.
EPA asked the attorneys general to narrow their request, then denied a fee-waiver request. Pruitt said the request was narrowed in February to cover just EPA communications with groups that were involved with regulations over regional haze under the Clean Air Act.
“We were very specific, and very narrow, on Clean Air Act and regional haze specifically,” Pruitt said. “The EPA rejected that in May. We have been patiently working with the EPA since last August on a very important matter of transparency and a very important matter of due process.”
A false notion?
Alisha Johnson, a spokeswoman with EPA in Washington, said the agency is reviewing the allegations in the lawsuit. But she said the idea of “sue and settle” was a false notion.
“We as an agency have no input or control over what parties sue us or what issues they focus on,” Johnson said. “We can't enter into settlements that provide us with new or additional authority.”
Pruitt's lawsuit cited research from the Washington-based Competitive Enterprise Institute, a free-market think tank, saying EPA granted fee-waiver requests more often to environmental groups than conservative groups.
Johnson said decisions on fee-waiver requests lie with FOIA officers who are career civil servants. Most requesters don't identify their political affiliations and the agency has legal requirements to ensure fee waivers are applied consistently, she said. Still, the agency's inspector general in June opened a review into the criteria and procedures around fee waivers for FOIA requests.
Pruitt said enforcement of the Clean Air Act and the Clean Water Act is based on the idea of cooperative federalism, with the states working in partnership with the federal government.
“It seems to me to be very suspect when somebody brings a lawsuit of the complex nature of an environmental lawsuit, like the Clean Air Act or Clean Water Act, and the same day the lawsuit is brought, a settlement is issued and a consent decree is entered, binding EPA to take certain steps that affect the states,” Pruitt said.
Pruitt said that's what happened when an environmental group, the WildEarth Guardians, sued the EPA over implementing regional haze rules in several Western states. The regulations govern emissions from power plants that affect visibility in federal parks and wilderness areas.
A settlement in that case spurred the EPA to accelerate its timeline for getting states to implement their own plans for regional haze.
Last year, Pruitt joined Oklahoma Gas and Electric Co. in an appeal over EPA's disapproval of Oklahoma's state implementation plan for regional haze. A ruling by the 10th U.S. Circuit Court of Appeals in Denver is expected later this summer.
Whitney Pearson, with the Sierra Club's Beyond Coal campaign in Oklahoma, said federal agencies typically receive notices of intent to sue by various groups. The Sierra Club, which makes frequent FOIA requests to the EPA, also gets asked to narrow its requests and has to wait for the production of information, she said.
Pearson called Pruitt's lawsuit a “fishing expedition” intended to find information to embarrass the EPA and the White House because of a political disagreement.
“We would think the AG (attorney general) has better things to do than fight off Clean Air (Act) protections,” Pearson said. “He's supposed to protect Oklahomans, and he's done nothing but fight clean air protections. It seems he's doing the coal industry's bidding instead of protecting Oklahoma families from pollution.”