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Programs and Projects of the Office of General Counsel (OGC)

OGC Responsibilities to Implement the October 2017 Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements

EPA Administrator Scott Pruitt's October 16, 2017 directive requires that EPA take steps to promote transparency and public participation in the consent decree and settlement agreement process involving lawsuits against EPA.  Specifically, the directive requires that OGC and the agency take the following actions, taking into account agency discretion and improvements in internal management:

  1. EPA's Office of General Counsel shall publish online a notice of intent to sue the Agency within fifteen days of receiving the notice from the potential litigant(s).
  2. When EPA receives actual notice of a complaint or a petition for review regarding an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court, the Office of General Counsel shall publish online that complaint or petition for review within 15 days of receiving service of the complaint or petition for review.
  3. EPA shall directly notify any affected states and/or regulated entities of a complaint or petition for review within fifteen days of receiving service of the complaint or petition for review. It shall be the policy of the Agency to take any and all appropriate steps to achieve the participation of affected states and/or regulated entities in the consent decree and settlement agreement negotiation process. Accordingly, EPA shall seek to receive the concurrence of any affected states and/or regulated entities before entering into a consent decree or settlement agreement.
  4. Within 30 days of this directive, EPA shall publish online a searchable, categorized list of the consent decrees and settlement agreements that continue to govern Agency actions, providing a brief description of the terms of each consent decree and settlement agreement, including attorney's fees and costs paid. EPA shall update this list by publishing any new final consent decree or settlement agreement within fifteen days of its execution.
  5. EPA shall not enter into a consent decree with terms that the court would have lacked the authority to order if the parties had not resolved the litigation. EPA shall also not enter into a consent decree or settlement agreement that converts an otherwise discretionary duty of the Agency into a mandatory duty to issue, revise, or amend regulations.
  6. If EPA agrees to resolve litigation through a consent decree or settlement agreement, and therefore there is no "prevailing party," then the Agency shall seek to exclude the payment of attorney's fees and costs to any plaintiff or petitioner in the litigation. EPA shall not seek to resolve the question of attorney's fees and costs "informally."
  7. If a consent decree or settlement agreement includes any deadline by which EPA must issue a final rule, the Agency must provide sufficient time:
    1. to modify its proposed rule if necessary, consistent with applicable laws and guidance on rulemaking, including any required interagency review or consultation,
    2. to provide adequate notice and comment on the modified proposal, and
    3. to conduct meaningful Agency consideration of the comments received on the modified proposal.
  8. EPA shall post online for review and comment by the public any proposed consent decree lodged in federal court or draft settlement agreement to resolve claims against the Agency. EPA shall also publish a notice of the lodging of the proposed consent decree or draft settlement agreement in the Federal Register.
    1. When posting the proposed consent decree or draft settlement agreement on EPA's website, the Agency shall explain:
      1. the statutory basis for the proposed consent decree or draft settlement agreement;
      2. the terms of the proposed consent decree or draft settlement agreement, including any award of attorney's fees or costs and the basis for such an award; and
      3. where applicable, the Agency's plans to meet deadlines in the proposed consent decree or draft settlement agreement, including:
        1. the identification of necessary milestones, and
        2. a demonstration that the Agency has afforded sufficient time to:
          1. modify its proposed rule if necessary,
          2. provide notice and comment on the modified proposal, and
          3. conduct meaningful Agency consideration of the comments received on the modified proposal.
    2. EPA shall provide a public comment period of at least thirty days, unless a different period of time is required by law.
    3. EPA may hold a public hearing on whether to enter into the proposed consent decree or draft settlement agreement.
    4. Based on the timely public comments received, EPA may seek to withdraw, modify, or proceed with the proposed consent decree or draft settlement agreement. If the terms of a consent decree or draft settlement agreement are modified, EPA shall follow the process set forth above.
  9. Where appropriate, the Administratior reserves the right to exercise his discretion and to permit EPA to deviate from the procedures set forth in the directive. In no circumstance, however, will the Administrator permit the agency to violate its statutory authority or to upset the constitutional separation of powers.
  10. The directive is intended to improve the internal management of EPA and does not create a right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, EPA, its officers or employees, or any other person.

Learn more about the directive.

In accordance with the Administrator’s October 2017 Directive on Settlements and Consent Decrees, OGC is posting complaints and petitions for review regarding an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court. Publication does not mean that the complaint or petition for review was properly filed and/or served upon EPA, and EPA does not waive any defenses related to improper filing or service as it relates to the cases published here.