Forest Service Litigation-Behind the Scenes II: Should Secretary of Agriculture Adopt EPA Transparency Guidelines?

It turns out that other folks have noticed the problem of lack of transparency in government settlements, and also the idea that other people should have time to weigh in to these settlements. These include more powerful entities (compared to FS employees and retirees) like States, specifically in dealing with EPA settlements and the problem of “Sue and Settle”. I definitely think that the transparency approach would be worth considering for Forest Service cases. It would help take care of the previously identified problems of “who is in the room”, “good solutions may not have been on the table” and “understanding broader impacts of a settlement.” Here’s the link to the directive:

To promote transparency and public participation in the consent decree and settlement agreement process involving lawsuits against EPA, the Agency shall follow the procedures set forth below:

(there are more but the below are the key ones for the FS)

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.

a. 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 the identification of necessary milestones and a demonstration that the Agency has afforded sufficient time to modify its proposed rule if necessary, provide notice and comment on the modified proposal, and conduct meaningful Agency consideration of the comments received on the modified proposal.

b. EPA shall provide a public comment period of at least thirty days, unless a different period of time is required by law.

c. EPA may hold a public hearing on whether to enter into the proposed consent decree or draft settlement agreement.

d. 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, I reserve the right to exercise my discretion and permit EPA to deviate from the procedures set forth in this directive. In no circumstance, however, will I permit the agency to violate its statutory authority or to upset the constitutional separation of powers.

10. This 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.

What do you think? Would you sign this or tweak it if you were the Secretary? I haven’t seen too much in the press that is against this idea substantively.

10 thoughts on “Forest Service Litigation-Behind the Scenes II: Should Secretary of Agriculture Adopt EPA Transparency Guidelines?”

    • I have to agree with Ron…it’s not the system that needs fixing, but the humans responsible for running the system, namely the choices they make at discretionary points of the system.

      I read the description as “collaboration within a legal environment”. In order for that system to succeed, drastic culture shifts will need to take place to move away from the “I win, therefore you must lose” legal outcomes we have now.

    • Ron, Thanks for sharing this. I read about this EPA policy change (public comment on settlements) in the Colorado Springs Gazette. Some in our city are not feeling the love for EPA. You know me, I don’t like inflammatory rhetoric, but here is the Gazette editorial board on the litigation on stormwater discharge for the city vs. EPA’s attitude toward the mining waste spill in Colorado (done by EPA contractors).

      The Obama administration’s EPA has taken a heavy toll on Colorado’s environment. The agency filed a costly lawsuit against Colorado Springs that threatens to enrich lawyers with money the city would otherwise invest to protect the environment from the dangers of outdated stormwater infrastructure.

      A year after Colorado Springs Mayor John Suthers committed hundreds of millions for environmentally sound stormwater assets, the EPA filed a vindictive lawsuit designed to punish the city for potential harms of a poorly maintained drainage system. Costs of the suit will only slow the city’s ability to improve prospects for the environment and communities downstream from the Springs.

      EPA hypocrites suing our community have refused to pay damages the agency caused farmers, ranchers, American Indian reservations, households and small businesses when it spilled 3 million gallons of toxic sludge from the Gold King Mine into the Animas and San Juan rivers in southwest Colorado.

  1. If it really did have the apparently intended effect of discouraging settlements, I think plaintiffs would stop taking settlements seriously as an alternative to litigation. And the government would start losing more cases.

    Outside of the problem of non-compliance with statutory deadlines, which would be a waste of effort for the DOJ to defend, “sue and settle” has always sounded to me like someone’s “alternative facts.” I’m not surprised that the Trump administration would come up with something that won’t work to solve a problem that doesn’t exist.

    Here’s a critique from someone in the real world:

  2. Jon,
    That’s what I meant by non-substantive comments on this.. There is a narrative that goes “Trump is bad, therefore anything his administration does is bad (even if it seems like transparency is generally a good thing, it’s not in this case) and if you disagree you’re dealing in “alternative facts.” ” That’s what I call non-substantive on this topic. If Zinke moved a Bears Ears boundary 20 feet, we could imagine the same narrative. It’s what my dear colleague a forest economist by training used to call “content-free.”

    “There is no problem” is a disempowering statement for people impacted by these decisions. It’s a problem that “doesn’t exist.” and yet States, before there was a Trump administration, identified it as a problem. Are States actually less in the “real world” than the author of the critique you posted? Everyday states deals with regulating air and water quality, education, transportation, and so on. This seems pretty real world to me!

  3. I don’t know how you can call a point-by-point rebuttal “non-substantive.”

    “States, before there was a Trump administration, identified it as a problem.” What is “it?” Yes, missing legal deadlines is a problem, but it can’t be solved (would only be made worse) by proceeding with litigation. The critique provides two examples of other kinds of cases, but points out the reasons why settlement was necessary. Do you have other examples of disagreements about substantive legal requirements that the government shouldn’t have settled?

  4. I thought I should point out two other things. “Sue and settle” as recognized “thing” involves the citizen suit provision of the Clean Air Act, Clean Water Act and Endangered Species Act. Most of the criticism has been aimed at the rule-making process, where there have been instances of plaintiffs directly negotiating substantive regulations (on both sides of the political spectrum). I’d be careful extrapolating that situation to Forest Service NEPA cases (which have no citizen suit provision, and are entirely about process, where additional work would involve the general public – and should be transparent).

    I suppose you could argue that “more work” is a loss that shouldn’t be negotiated, but that is a different issue than the substantive EPA sue and settle cases or the missed deadline ESA cases. And I’d be surprised if garden-variety land management projects would attract the political attention needed to influence DOJ make decisions contrary to their legal assessment of the case.

  5. The Center for Biological Diversity’s take on the EPA settlement directive:

    The linked 2014 GAO report is “Impact of Deadline Suits on EPA’s Rulemaking Is Limited.” It involves “major rules” issued by EPA from 2008 to 2013, and addresses this question: “Some have expressed concern that the public is not involved in the negotiations and that settlements affect EPA rulemaking
    priorities.” The seven settlements all involved the Clean Air Act, and “None of the seven settlements included terms that finalized the substantive outcome of a rule.”

  6. I think it’s important to note that FS land management cases have NOT been considered part of “sue and settle”. BUT at the same time, I have personally observed settlement agreements that don’t make sense in terms of the precedents that they establish and which perhaps could have been improved by taking public comment.

    So my point was “what’s wrong with exposing draft settlements to public comment?” and “why not apply this to appropriate FS cases?”

  7. A point I have made is that settlement agreements don’t establish legal precedents (or policy precedents according to the Forest Service), so the cost is lower than you are probably assuming.

    I’m also not sure of the benefit you think there is of public comments (especially since it won’t involve the precedent angle). I assume they are expected to influence the FS rather than the plaintiffs. If they tell the FS something they didn’t know about the project, doesn’t that mean the FS should go back and re-evaluate the project (which is presumably what the plaintiffs want)? A comment period and evaluating comments would also further delay resolution (which is not something the FS usually likes).


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