Environmental lawsuits found to have “limited” effect on national rulemaking

Government Accountability Office issues report after congressional request.

 

It should surprise no one that the Environmental Protection Agency often finds itself behind deadline. From regulating ethanol blends in gasoline to pesticide residues in food, the agency consistently fails to meet timelines Congress sets for releasing new rules. Just this month, EPA announced that it was delaying until summer the much-anticipated carbon emission rule for new power plants. What might surprise much of the American public, however, is that any individual, group, or business can sue the EPA for these delays.

Written into the Clean Air and Clean Water Acts, as well as five other key federal environmental laws, is the right for any member of the public to file a lawsuit if EPA is not meeting Congressionally mandated deadlines. As we’ve reported in the past, environmental groups have often used this right, causing conservative lawmakers to complain that they’re influencing EPA rules. Now, a House-requested report finds despite such concerns, green group lawsuits have very little impact on new rules.

Oil refinery in Wyoming.
Oil refinery in Wyoming, one of those affected by Clean Air Act regulations that were the subject of a lawsuit. COURTESY FLICKR USER DAVID MAXWELL FINE

Conservative opponents of increased environmental regulation, like Oklahoma Attorney General Scott Pruitt, have frequently decried deadline suits and resulting EPA rulemaking as “backdoor deals with environmental groups.” In 2013, Pruitt sued the agency along with 11 other attorney generals, claiming that EPA was actually encouraging lawsuits from particular environmental groups, including the Greater Yellowstone Coalition, Montana Environmental Information Center, Grand Canyon Trust, and San Juan Citizens Alliance. The suit was quickly dismissed by the U.S. district judge of western Oklahoma.

But Republican concerns lingered, and last year, several representatives on the House Committee on Energy and Commerce requested the Government Accountability Office (GAO) to assess the impact of lawsuits on major EPA rules over the last seven years.

The GAO report, released in December, makes it clear that deadline suits play a much more limited role in rulemaking than what opponents claim. The report looked at all 32 major rules that EPA has issued since May 31st of 2008, and found that of those, only nine rules were issued due to settlements of deadline suits, all of which were associated with the Clean Air Act. Of those rules, EPA’s tardiest was its emissions regulations for petroleum refineries, issued 23 years after the deadline set by Congress.

The report states unambiguously that none of these nine rules was changed substantively by the settlements that spurred them, directly countering criticisms that deadline suits allow environmental groups to illegally determine federal policy. “The only dispute is over the appropriate remedy,” the GAO states, “ i.e., fixing a new date by which EPA should act.” Critics, however, have underplayed the report findings as an “accounting” rather than a true substantive analysis of the role deadline suits play in rulemaking.

Environmental groups, including the Center for Biological Diversity, laud the report findings. Bill Snape, senior counsel at the Center, believes the report shows right-wing criticisms of deadline suits are unfounded. “The GAO has just debunked those claims and revealed them for what they are: political fear-mongering,” said Snape in a press release.

In a letter to GAO, EPA general counsel Avi S. Garbow strongly supported the report’s findings. “This report describes our longstanding and entirely appropriate approach to litigation,” wrote Garbow. Not mincing words, he goes on in the letter to support the environmental laws themselves: “There is nothing secret about those mandates; they are the law of the land. And it was Congress that gave the public the legal tools to hold the government to account in carrying out the mandates it set.”

 Alex Carr Johnson writes from western Colorado.