Interior Department issues order to avoid settlements

Critics say the decree will slow down the implementation of enacted laws.


Salmon are an enduring icon of the Pacific Northwest, essential to the region’s ecosystems and central to many of its Indigenous cultures. They’re also in serious danger of extinction in many of Washington’s waterways, partly because water-quality standards for rivers often fall below what is necessary for endangered fish to recover. 

So four years ago, the conservation group Northwest Environmental Advocates sued the Environmental Protection Agency, saying they had failed to put in place adequate measures to protect endangered salmon from water pollution. The parties decided to settle, but didn’t reach a final agreement until July — two years later than the nonprofit group expected — partly because of an EPA policy, enacted a year ago, that makes it harder to settle cases outside of the courts. In September, Interior Department Deputy Secretary David Bernhardt issued a similar directive.

Interior Department Deputy Secretary David Bernhardt, right, pictured with Interior Department Secretary Ryan Zinke, announced new policies for dealing with environmental settlements on Sept, 11, 2018.
U.S. Department of the Interior

The policies are supposed to increase public input in the settlement process, slow it down, and help the EPA and Interior Department get out of paying environmental groups’ lawyers’ fees. The Trump administration says the new rules are necessary to prevent government agencies from colluding with environmental groups to reach settlements that favor their interests. But critics say these rules only delay the implementation of federal laws designed to protect the environment, leaving ecosystems and wildlife vulnerable while agencies drag their feet.

The agencies’ policy reforms, which include a requirement for a public comment period prior to settlement and the creation of an online database of agreements, are in response to a practice called “sue and settle.” Often, groups that sue the federal government negotiate agreements that keep cases from going to court; these settlements allow both sides to avoid a costly trial while still ensuring that government agencies follow the law. Though regulated industries and administration officials denounce lawsuit-happy environmental groups, the rhetoric surrounding sue and settle typically disregards the fact that agencies choose to settle because, as Bernhardt puts it in his order, “the Department is likely to lose.” According to a letter from 60 former federal attorneys criticizing the new EPA policy, “It is EPA’s failure to comply with legal requirements that is the problem, not the people who sue EPA.”

Some influential groups oppose the government’s decision to settle cases out of court. The U.S. Chamber of Commerce, for example, a business and industry lobbying group rather than a government entity, says the process shuts the business community out of the regulatory process and creates new rules and regulations that cost companies billions of dollars.

But lawsuits alone don’t create laws, and the vast majority of environmental settlements simply lay out a framework for following existing laws. Many environmental laws impose timelines for actions, such as deciding whether a species belongs on the endangered species list, and federal agencies often miss those legal deadlines. But through settlements, agencies agree to terms that set timelines for them to comply with the law. A legal analysis published by lawyer Ben Tyson in the Virginia Law Review, for example, looked at 79 settlements brokered between environmental groups and the Obama administration, and found that all but four of the agreements involved setting deadlines for compliance.

In addition to creating timelines for environmental protections, laws like the Clean Air Act, Clean Water Act and Endangered Species Act include provisions for federal agencies to pay their opponents’ attorneys’ fees when the agencies lose — or settle — a case. The idea is “to deputize private citizens to uphold the law,” said Allison LaPlante, the co-director of the Earthrise environmental law center at Lewis and Clark Law School, which has agreed to settle the case on water-quality standards in Washington. But because Earthrise, like many nonprofits, has a limited budget, eliminating attorney fee reimbursement limits the number of lawsuits the group can bring. 

The quiet resolution of the Washington salmon case, the first to pass through the EPA’s new policies for settlement agreements, offers a glimpse of the change’s potential impacts. Prolonging the settlement process, for example, makes it harder for the center to take on additional cases, LaPlante said. And the new policy hasn’t done much to engage the public: Only six comments were made on the Washington settlement agreement, and all of them supported endangered species.

The net result of the new sue-and-settle policies will likely mean a greater burden on agency staff, as more time and money is spent taking more cases to court instead of reaching settlements, said Justin Pidot, a University of Denver law professor and former attorney for the Justice and Interior departments. And as cases get delayed, regulations that could help ensure clean waterways and a healthy habitat for endangered species like salmon lag behind. “It’s a net win for no one,” Pidot said, “except those that benefit from slowing down enforcement of the law.”

Carl Segerstrom is an editorial fellow at High Country News. Email him at [email protected] or submit a letter to the editor

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