Trump Track: Test for EPA’s Sue and Settle Process

As noted previously on this blog, on October 16, 2017, EPA Administrator Scott Pruitt issued a memorandum announcing new policies to avoid what he considered inappropriate approaches to resolving litigation, commonly referred to by the rubric “sue and settle.” The major changes in policy included inviting participation by all interested parties in any settlement negotiations, more aggressive defense of claims based on alleged non-discretionary duties or deadlines, and refusal to pay attorneys fees to plaintiffs in connection with settlements. That policy will soon be tested.

On October 19, 2017, the Sierra Club filed suit against Administrator Pruitt, alleging failure to meet deadlines and complete required assessments and reports under the Renewable Fuel Standards provisions of the Clean Air Act. See Sierra Club v. Scott Pruitt. The complaint presents a standard “failure to perform non-discretionary acts” claim, alleging that the uncompleted non-discretionary acts form the basis for the discretionary decisions required of the Administration. Notably, while the Obama Administration had also not undertaken the alleged non-discretionary actions, it was not sued, but then the Trump Administration has chosen to reverse the course of the Obama Administration with respect to those discretionary decisions.

What It Means

The suit is unlikely to result in any policy change by the Trump Administration. However, it should provide an early glimpse of how the new agency settlement policies will work in practice, and more specifically, whether the policies will result in more protracted litigation, with fewer settlements and more court-directed deadlines.