William Yeatman: How EPA Uses “Sue and Settle” Agreements To Steal Power from the States (and what the Congress is doing to stop it)

In late March, the House Judiciary Committee passed H.R. 3862, the Sunshine for Regulatory Decrees and Settlements Act of 2012, by a 20-10 vote. If enacted, the bill would make it more difficult for the Environmental Protection Agency to negotiate “sue and settle” agreements that effectively exclude States from environmental policymaking, in seeming contravention of the Clean Air Act.

By making these “sue and settle” agreements more transparent, H.R. 3862 would spur a welcome rebalancing of American environmental federalism.

Federal environmental regulations pursuant to the Clean Air Act are prescribed or approved by EPA, but they are implemented by the States. This relationship is necessary because, as the law recognizes, “air pollution prevention…at its source is the primary responsibility of States and local governments.” Accordingly, the Act “establishes a partnership between EPA and the States for the attainment and maintenance of national air quality goals,” thereby reflecting the Congress’s intent to “carefully [balance] State and national interests by providing for a fair and open process in which State and local governments, and the people they represent, will be free to carry out the reasoned weighing of environmental and economic goals and needs.” Natural Res. Def. Council, Inc. v. Browner (D.C. Cir. 1995).

It is beyond dispute that the Congress wanted States and EPA to work together to improve air quality. Recently, however, EPA has found a way to ditch the States, and instead render environmental policy with environmentalist litigation groups.

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