On October 16, 2017, EPA Administrator Scott Pruitt issued an administrative order with the goal of ensuring that the Environmental Protection Agency is transparent when settling lawsuits – particularly those filed by environmental groups seeking to regulate through litigation.

A press release accompanying the administrative order explains that the EPA has long been sued by environmental groups to compel non-mandatory action under a “specific, unreasonable timeline.” These settlement agreements may involve agency staff being complicit with the environmental groups, and have little to no input from states, stakeholders, or the general public. As a result, the EPA may be bound by these agreements to take certain actions not supported by the law, and circumvent Congress’ regulatory process.

Under the directive, the EPA must publish any notices of intent and complaints within 15 days of receipt, and timely contact states and stakeholders that may be affected by a potential settlement agreement. Proposed settlement agreements will be posted for at least 30 days to provide for adequate public comment, as will the finalized settlement agreements for posterity. The EPA is also directed to exclude the payment of attorney’s fees to plaintiffs in the event that the litigation is resolved through a settlement agreement or consent decree.

With this directive, Pruitt states that “[t]he days of regulation through litigation are over.”

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