In response to a request made by Senator David Vitter, EPA has made several concessions to address concerns about agency transparency. In particular, industry has had concerns about the recent increase of so-called “sue and settle” cases. Under the sue and settle process, advocacy groups sue EPA to issue a regulation. During closed-door settlement discussions, the advocacy group and EPA agree to a timeline and the content of a new rule. After an agreement has been struck, it is difficult for the public to persuade EPA to modify the terms of the settlement agreement during the notice and comment period; therefore, the closed-door settlement discussions ultimately end up dictating the terms of the future agency action. The Ninth Circuit recently dealt a blow to this practice by overturning a consent decree that the U.S. Forest Service, Bureau of Land Management, and U.S. Fish & Wildlife Service entered into with various advocacy groups. Conservation Northwest v. Sherman, No. 11-35729 (Opinion dated Apr. 25, 2013) (holding “that a district court abuses its discretion when it enters into a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.”).
To address concerns that interested parties are unaware that such discussions may be taking place, EPA created two new webpages. The first posts copies of petitions for rulemaking filed with EPA: http://www2.epa.gov/aboutepa/petitions-rulemaking. By making these petitions more readily available, it will be easier for interested parties to intervene in litigation and get a seat at the settlement table alongside advocacy groups. As of July 1, copies of seven petitions were posted on this new webpage. Although this new webpage is a step in the right direction, it is not comprehensive because it only includes petitions for rulemaking filed on or after January 1, 2013. Furthermore, it does not include copies of petitions for reconsideration of rules issued by the agency or petitions provided as comments during the rulemaking process.
In addition, EPA has created a new webpage that provides copies of the notices of intent to sue EPA for failure to perform an act or duty required under statute: http://www.epa.gov/ogc/noi.html. These citizen suit provisions include: section 304 of the Clean Air Act (CAA), section 505(a)(2) of the Clean Water Act (CWA), section 1449(a)(2) of the Safe Drinking Water Act (SDWA), section 11(g)(1)(A) of the Endangered Species Act (ESA), section 7002(a)(2) of the Resource Conservation and Recovery Act (RCRA), section 310(a)(2) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and section 326(a)(1)(B) or (C) of the Emergency Planning and Community Right-to-Know Act (EPCRA). The webpage provides copies of all notices received by EPA on or after January 1, 2013. As of June 28, EPA has posted twenty-four notices of intent to sue.
Posting these petitions and notices of intent online does not mean that the agency has or will grant the petitions. Similarly, posting the notices of intent to sue does not indicate that the citizen filing the notice will take the next step of filing a lawsuit. Regularly monitoring the notice of intent website will help alert industry of potential litigation so that it can be primed to make a timely decision regarding whether to intervene.
EPA plans to update these websites as new petitions for rulemaking and notices of intent are received by the agency.