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"The settlement of a lawsuit is a powerful tool for revising EPA's authority and writing new regulations"

House, Senate Lawmakers Highlight Concerns with EPA “Sue & Settle” Tactic for Backdoor Regulation

By EPW Blog ——--January 20, 2012

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Link to Press Release Washington, DC - Republican leaders of the House Transportation and Infrastructure Committee and Senate Environment and Public Works Committee have written to Environmental Protection Agency (EPA) Administrator Lisa Jackson regarding their concerns with the agency's recent pattern of choosing to settle activist lawsuits under terms that EPA then uses to justify expanding its regulatory authority without the direction of Congress.
Sent by House Transportation and Infrastructure Committee Chairman John L. Mica (R-FL), Senate Environment and Public Works Committee Ranking Member James Inhofe (R-OK), House Water Resources and Environment Subcommittee Chairman Bob Gibbs (R-OH), and Senate Water and Wildlife Subcommittee Ranking Member Jeff Sessions (R-AL), the letter requests EPA to answer a number of questions regarding the extent of its authority. EPA is reportedly in negotiations to settle two lawsuits that allege the agency has greater regulatory authority than what Congress provided under the Clean Water Act (CWA). The lawmakers are concerned that in choosing to not defend these cases in court, EPA is effectively refusing to honor the limits of its authority under the CWA and could subsequently use the settlements as a basis for an expansion of jurisdiction beyond the CWA's parameters. "The EPA under this Administration continues to look for ways to circumvent Congress in order to expand its burdensome regulatory regime," Mica said. "We have serious concerns that this ‘sue and settle' tactic is becoming another EPA tool for backdoor jurisdiction grabs."
"The settlement of a lawsuit is a powerful tool for revising EPA's authority and writing new regulations," said Inhofe. "Take, for example, the Chesapeake Bay TMDL and EPA's proposed stormwater rules: they both stem from the same settlement agreement. The charges in these cases are outside EPA's current legal authority. I look forward to EPA's answers to these important questions and will continue to work with my colleagues as we watch these lawsuits and settlement agreements closely." "For far too long EPA has gotten away with ‘sue and settle' tactics that have been used to expand the agency's powers beyond that granted by law," said Gibbs. "Rather than defending the statutory and constitutional limits on its power, the EPA appears to be encouraging court settlements that expand its regulatory authority and usurp the proper role of states in managing their waters. It is time to end this mission creep and restore the EPA's intended role as described by the Clean Water Act." "The Clean Water Act is based on the principle of cooperative federalism, which recognizes EPA's important, yet limited, role in regulating areas traditionally governed under state law," said Sessions. "As a former federal prosecutor and state attorney general, I believe the Executive Branch has a clear duty to vigorously defend, to the highest level, any lawsuits that seek to compel agency action that is not authorized by law. This letter will hopefully lace focused attention on EPA's duty to defend the law as passed by Congress. Too often collusive lawsuits and settlements have essentially created law never passed by Congress." The two lawsuits in question were brought by the Conservation Law Foundation and the Buzzards Bay Coalition. They allege EPA has a non-discretionary duty under the CWA to regulate pollution of groundwater and to mandate states regulate nonpoint source pollution. However, the CWA provides no authority to EPA to regulate nonpoint sources or groundwater, or to force states to regulate activities that EPA itself has no authority to regulate. The text of the letter follows (or click here):
Dear Administrator Jackson: Recently, there have been reports in the press that the Environmental Protection Agency (EPA) is negotiating a settlement agreement with the Conservation Law Foundation and the Buzzards Bay Coalition to resolve two lawsuits. One lawsuit alleges EPA has a non-discretionary duty under the Clean Water Act to regulate pollution of groundwater. The other lawsuit alleges EPA has a non-discretionary duty to mandate states regulate nonpoint source pollution. Since neither allegation is true, we were very surprised to learn that EPA is choosing to settle these cases, rather than to honor the limits of its authority under the Clean Water Act and vigorously defend these cases. We are concerned that EPA has demonstrated a disturbing trend recently, whereby EPA has been entering into settlement agreements that purport to expand Federal regulatory authority far beyond the reach of the Clean Water Act and has then been citing these settlement agreements as a source of regulatory authority in other matters of a similar nature. One example of this practice is EPA's out-of-court settlement agreement with the Chesapeake Bay Foundation in May 2010. EPA has referred to that settlement as a basis for its establishment of a Federal total maximum daily load (TMDL) for the entire 64,000 square-mile Chesapeake Bay watershed and EPA's usurpation of state authority to implement TMDLs in that watershed. EPA also has referred to that settlement as a basis for its plan to regulate stormwater from developed and redeveloped sites, which exceeds the EPA's statutory authority. Another example is EPA's out-of-court settlement agreement with the Natural Resources Defense Council, also in May 2010, under which it agreed to impose regulatory reporting requirements on entities that are not regulated by the Clean Water Act. As an Executive Branch agency, EPA must carry out the laws passed by Congress. EPA cannot exceed the authority granted to it by Congress. Indeed, the Executive Branch has a clear duty to vigorously defend, to the highest level, lawsuits that seek to compel action by any agency that is not authorized by law. Further, we are sure we do not need to remind you the expenditure of Federal funds to carry out unauthorized actions may be a violation of the Anti-Deficiency Act, which imposes personal liability on Federal officers. We are not asking for any details of your settlement discussions. However, to allow us, other members of Congress, and the public to fully understand the breadth of the Federal regulatory authority that EPA believes it can assert, please provide responses to the following questions within two weeks of the date of this letter:
  1. Does EPA consider a ground water aquifer to be a water of the United States under the Clean Water Act? Please explain.
  2. Does EPA consider a ground water aquifer to be a point source? Please explain.
  3. Does EPA believe it has the authority under the Clean Water Act to regulate leaching of pollution into ground water? Please explain.
  4. Does EPA believe it has the authority under the Clean Water Act to regulate the direct discharge of pollutants into ground water? Please explain.
  5. According to a recent press article, an EPA spokeswoman has said section 208 of the Clean Water Act does not authorize EPA to exercise any Federal regulatory authority over nonpoint sources. Please confirm for us that the Clean Water Act does not provide EPA with any authority to craft section 208 areawide plans or to exercise any Federal regulatory authority over nonpoint sources under section 208 or any other section of the Clean Water Act, and that section 208 is consistent with the rest of the Clean Water Act that leaves the management of nonpoint sources to the states.
  6. Does EPA believe it has the authority under the U.S. Constitution and under the Clean Water Act to commandeer a state legislature and require a state to enact an enforceable regulatory program for nonpoint sources? Please explain.
  7. Does EPA believe it has the authority to withhold Federal funding from a state that is in compliance with an areawide waste treatment management plan that has been approved under section 208? Please explain.
  8. Does EPA believe that a requirement in section 603(f) of the Clean Water Act that a state fund projects that are consistent with a state's plan developed under section 208 of the Act constitutes authority to require a state to enact an enforceable regulatory program for nonpoint sources? Please explain.
  9. Does EPA believe that a requirement under 603(f) of the Clean Water Act that a state fund projects that are consistent with a state's plan developed under section 208 of the statute constitutes authority to withhold Federal funding from a state whose areawide waste treatment management plan does not include an enforceable regulatory program for nonpoint sources? Please explain.
Thank you for your prompt attention to this matter.

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