Attorney General Sam Olens and 11 attorneys general have filed a lawsuit in federal court against the Environmental Protection Agency (EPA) seeking to force the EPA to follow the law and disclose documents related to its “sue and settle” tactics.
‘“Sue and settle’ allows the EPA to push its agenda on the American people through sweetheart deals with special interest groups,” said Olens. “We deserve a government that conducts business in a transparent manner, especially when its actions have a direct impact on all of us. The refusal to produce documents related to these backdoor settlements is the latest disregard for the rule of law by the EPA.”
The EPA utilizes “sue and settle” to achieve environmental policies that would otherwise be blocked by the transparent rulemaking process that is a vital part of a representative democracy. In essence, outside advocacy groups notify agencies of their intent to sue and then conduct closed-door negotiations. During these settlement talks, special interest groups dictate the agency’s policy priorities and funding choices, ultimately resulting in legally binding court-approved settlements. In the process, States and other affected parties are sidelined from weighing in on policy decisions that directly impact them. In fact, affected parties often have no knowledge of the negotiations until they have become legally binding.
On February 6, 2013, Attorney General Olens and his fellow attorneys general filed a Freedom of Information Act request for communications between the EPA and special interest environmental groups concerning consent decrees that dictate how EPA is to implement the Clean Air Act’s Regional Haze program in various States. The Clean Air Act is based on cooperative federalism, meaning States – not the EPA – design and implement plans for compliance with the Regional Haze program. The EPA has refused to produce the relevant documents.
The States also sought a fee waiver in their request. “Ninety-two percent of the time EPA grants fee waiver requests from noncommercial requesters who are supportive of EPA’s policies and agendas, but denies a majority of fee waiver requests from noncommercial requesters who are critical of EPA,” the complaint states. “States properly asked for specific records ... (and) EPA violated FOIA’s mandate.”
Olens has been an outspoken critic of the EPA’s “sue and settle” approach to environmental policy. In June he submitted testimony to the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law arguing that the practice runs afoul of transparency and the important federal principles of separation of powers and federalism by circumventing the steps put in place by Congress for the rulemaking process and by excluding States from regulatory decisions in which they have historically played a vital role.
A copy of the lawsuit, filed in the U.S. District Court for the Western District of Oklahoma, is attached.
 Alabama, Arizona, Kansas, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, Utah and Wyoming