Setting the Record Straight

Congress has charged the EPA with administering many of our nation’s key environmental statutes, which serve to protect the health of our citizens and ensure a cleaner and safe environment for ourselves and our children.  The Agency’s statutory responsibilities are many, and we constantly seek to implement the environmental laws faithful to both the applicable legal standards and the guiding science.

While Congress wrote the laws to create many mandatory duties for EPA to protect people’s health and our environment, it also included provisions that allow affected citizens to challenge the Agency’s final actions, providing a citizen-induced check on the full implementation of the relevant laws’ provisions.  This means of holding our government accountable is, by no means, limited to the environmental arena.  It is, in many respects, a bedrock component of how our system of government best operates, with the watchful eye of an engaged citizenry cast upon its government.

In the environmental context, EPA is often challenged by companies, trade associations, individuals, public interest organizations, and even states, each of whom may complain about what the Agency did, or did not do – and in every such instance, we are measured only by how we have complied with the law passed by Congress.

There has been a lot of misinformation about the Agency’s approach to lawsuits against it.  Notably, these criticisms tend to be directed solely to citizen suits filed principally by individuals and organizations who purport to seek only to hold the Agency accountable. Escaping the criticism are challenges brought by industry and others, who typically account for half or more of the lawsuits filed against EPA annually.

To be clear, courts ultimately determine the legitimacy of suits brought under the laws allowing for such challenges. And it is not the motivation of the underlying challenge that shapes the Agency’s response to it, but rather it is how we, working with the Department of Justice, evaluate the claims based on the law. Our focus is not on who is the plaintiff, but on any allegation that EPA has not complied with its statutory duties, and how to best ensure that we are able to move forward, adhering to the law and the science.

The “sue and settle” rhetoric, strategically mislabeled by its proponents, is an often-repeated but a wholly invented accusation that gets no more true with frequent retelling.  So it is time to set the record straight.

Let’s start with the facts:

1)      EPA has no control over who sues the Agency. It is never EPA’s preference to be sued, and the Agency is not complicit in such lawsuits. But precisely because the Agency’s mission is to protect human health and the environment, which has broad benefits and impacts, many Americans have an interest, and often a right, to sue when EPA misses a statutory deadline. No one side, or special interest, has a monopoly on the exercise of the lawful opportunity to challenge EPA’s actions, or failure to act – indeed, oftentimes the full spectrum of interests is present in any given lawsuit.  But this right is not one granted by EPA; it comes from Congress and the laws themselves.  In addition, to the extent that lawsuits are based upon alleged missed deadlines, those deadlines are themselves not creations of Agency will or desire, but have been set by statute.

2)      EPA seeks to settle lawsuits when it expects settlement to be more favorable than litigation. EPA approaches a lawsuit based upon a thorough assessment of the claims themselves, not upon who brought them.  Ultimately, courts are the arbiters of compliance with the laws. How we litigate or seek to resolve any claim is a case-specific determination informed by experienced counsel at EPA and DOJ, with the germane guidepost being compliance with the law. In any case involving EPA, if, based upon a full assessment of the strengths and weaknesses of any legal claim – and the risks to the Agency and the public of a loss – EPA and DOJ elect to explore potential settlement options, we do so solely with the interest of the United States in hand.  Any settlement agreement is the result of a negotiation between the parties. While EPA litigates many lawsuits to final judgment—in fact EPA settles a much lower percentage of its cases than the national average—sometimes the Agency and the DOJ determine that it is in the public interest to settle.

3)      EPA does not and will not commit in settlement to any final, substantive rule. A fundamental element of our system of government is that the legislative branch legislates, and the executive branch implements those laws.  It should come as no surprise then, that EPA administers the environmental laws Congress passed, and the Agency does not derive or exercise authority to act from other, self-created, sources.  In every case, EPA’s actions are linked to statutory authorizations.  The existence of a lawsuit does not change that truth.  A lawsuit does not add to, or take away from, EPA’s statutory obligations – while it may shine a spotlight on an area that was previously in the shadows, what it illuminates is nothing more than what Congress already required by law.  EPA also does not allow the fact of a lawsuit – irrespective of the plaintiff – to supplant its reasoned and scientific judgment in fashioning a standard or guideline required by law.

4)      Settling a lawsuit saves money. Settling out of court can save taxpayers money and provide a more workable schedule for the Agency to take a mandatory action. In fact, attorney fee awards, in cases we have recently litigated and lost, have been 400% more than in settled cases. The practice of resolving cases through a negotiated settlement can have great value in reducing unnecessary litigation, as well as the costs associated with litigation and potential attorneys’ fees if EPA does not win the case. It also frees up the resources of the judicial system and the Department of Justice allowing them to focus on other pending matters, while freeing EPA’s resources to be focused on its core mission: protecting the health and environment of all Americans.  EPA does not seek to enter into settlement agreements for the sole reason of saving money.  And when a different litigation approach makes sense, we will pursue it vigorously.  But there are times when settlements are the smartest ways to resolve strong legal challenges brought against the Agency, and we will not recommend wasteful and non-sensible legal battles just for the sake of appeasing Agency critics.

Avi Garbow is EPA’s General Counsel