Many of these activities  may be subject to legal challenge.and Clean Water Act require EPA to take certain actions, such as issuing  rules, to implement provisions of the law within certain statutorily  designated time frames, and EPA is subject to legal challenge for not  taking the mandatory actions by the required deadline. Second, the major environmental statutes typically  include judicial review provisions authorizing citizens to challenge certain  EPA actions, such as promulgating regulations or issuing permits. Third,  the Administrative Procedure Act authorizes challenges to certain  agency actions that are considered final actions, such as rulemakings and  decisions on permit applications. FWS is responsible for administering the Endangered  Species Act for freshwater and land species. According to EPA and Justice officials,  when a deadline suit is filed, the agencies work together to determine  how to respond to the lawsuit, including whether or not to negotiate a  settlement with the plaintiff to issue a rule by an agreed upon deadline or  allow the lawsuit to proceed. The Number of Environmental Litigation Cases against EPA and Their Associated Costs Varied with No Discernible Trend, and Information on FWS Lawsuits Is Limited

As discussed in our August 2011 report, the number of environmental  litigation cases brought against EPA each year from fiscal year 1995  through fiscal year 2010 varied with no discernible trend. Similarly, data  available from Justice, the Department of the Treasury, and EPA show  that the costs associated with environmental litigation cases against EPA  have varied from year to year for fiscal years 1998 through 2010,  averaging at least $3.6 million per year with no discernible trend. Information regarding lawsuits against FWS is limited, with FWS data  showing that the agency paid about $1.6 million in 26 cases from fiscal  years 2004 through 2010. As shown in figure 2, most cases against EPA were brought under the  Clean Air Act, which represented about 59 percent of the approximately  2,500 cases that were filed during the 16-year period of our August 2011  report (i.e., fiscal year 1995 through fiscal year 2010). Cases filed under  the Clean Water Act represented the next largest group of cases (20  percent), and the Resource Conservation and Recovery Act represented  the third largest group of cases (6 percent). According to the stakeholders we interviewed for our August 2011  report, a number of factors—particularly a change in presidential  administration, the passage of regulations or amendments to laws, and  EPA’s failure to meet statutory deadlines—affect plaintiffs’ decisions to  bring litigation against EPA. In addition, owing to statutory  requirements to pay certain successful plaintiffs for attorney fees and  costs, Treasury paid a total of about $15.5 million to prevailing plaintiffs  for attorney fees and costs related to these cases for fiscal years 2003  through 2010, averaging about $2 million per year. EPA paid a total of  $1.5 million from fiscal year 2006 through fiscal year 2010 in attorney fees  and costs, averaging about $305,000 per year. Settlements in EPA Deadline Suits Established a Schedule for Issuing Rules, and according to EPA Officials, These Settlements Primarily Impacted a Single EPA Office

In December 2014, we reported that the terms of settlements in  deadline suits that resulted in EPA issuing major rules from May 31,  2008, through June 1, 2013, established a schedule for issuing rules. Specifically, the settlements were to either promulgate a statutorily  required rule or make a determination that doing so is not appropriate or  necessary pursuant to the relevant statutory provision. They were all Clean Air Act rules. Of the 32 major rules that EPA issued from May 31, 2008 to June 1,  2013, 9 rules following seven settlements in deadline suits were Clean Air  Act rules. According to EPA Officials, Settlements in Deadline Suits Primarily Affected Rulemaking Priorities in a Single EPA Office

According to EPA officials interviewed for our December 2014 report,  settlements in deadline suits primarily affected a single office within  EPA—the Office of Air Quality Planning and Standards (OAQPS)— because most deadline suits were based on provisions of the Clean Air  Act for which that office is responsible. These provisions have recurring  deadlines requiring EPA to set standards and to periodically review—and  revise as appropriate or necessary—those standards. OAQPS sets these  standards through the rulemaking process. OAQPS officials said that deadline suits  affect the timing and order in which rules are issued by the National  Ambient Air Quality Standards program and the Air Toxics program, but  not which rules are issued. Available data did not show discernible trends in the number of  cases or costs associated with the litigation against EPA and there was  limited information on FWS.
Why GAO Did This Study

Environmental statutes, such as the Clean Air Act and Clean Water Act, allow citizens to file suit against EPA to challenge certain agency actions, such as issuing regulations or rules. Such laws also require EPA to take certain actions, such as issuing rules, to implement provisions of the law within certain statutorily designated time frames. Citizens can sue EPA to compel the agency to take required actions, such as issuing a rule on time, in lawsuits often called deadline suits. EPA can negotiate a settlement to issue a rule by an agreed upon deadline.
Where EPA is named as a defendant, Justice provides EPA's legal defense. If successful, plaintiffs may be paid for certain attorney fees and costs. Payments are made from Treasury's Judgment Fund or EPA's appropriations.
Under the Endangered Species Act, FWS also faces lawsuits over its regulations and actions to carry out the act. As with EPA, Justice defends suits against FWS in court.
This testimony is based on GAO reports issued from August 2011 through December 2014 about litigation directed at EPA and FWS. It focuses on (1) information on cases and associated costs, as available, for EPA and FWS and (2) information on the impact of deadline cases on EPA rulemaking.
GAO did not make recommendations in the reports on which this testimony is based and is not making any in this testimony.

What GAO Found

As GAO reported in August 2011, the Environmental Protection Agency (EPA) faces legal challenges implementing the nation's key environmental laws. The number of environmental litigation cases brought against EPA each year for fiscal years 1995 through 2010 varied with no discernible trend. Data available from the Department of Justice, the Department of the Treasury, and EPA show that the costs associated with such cases against EPA have also varied from year to year with no discernible trend. Specifically,
Justice staff defended EPA on an average of about 155 such cases each year from fiscal years 1995 through 2010, for a total of about 2,500 cases during that time. Most cases were filed under the Clean Air Act (59 percent of cases) and the Clean Water Act (20 percent of cases).
According to stakeholders GAO interviewed, a number of factors—particularly a change in presidential administrations, new regulations or amendments to laws or EPA's not meeting statutorily required deadlines—affected environmental litigation.
Justice spent at least $46.9 million, averaging $3.6 million annually, to defend EPA in court from fiscal years 1998 through 2010. In addition, owing to statutory requirements to pay certain successful plaintiffs for attorney fees and costs, the Treasury paid about $15.5 million from fiscal years 2003 through 2010—averaging about $2 million per fiscal year—to plaintiffs in environmental cases. EPA paid approximately $1.5 million from fiscal years 2006 through 2010—averaging about $305,000 per fiscal year—to plaintiffs for environmental litigation claims. (All amounts are in constant 2015 dollars.)
As one of the primary agencies responsible for implementing the Endangered Species Act, the U.S. Fish and Wildlife Service (FWS) faces litigation over its regulations and actions to carry out provisions of the act. In April 2012, GAO reported that FWS did not use a data system to track cases and associated fees and costs it paid. As a result, information regarding cases against FWS and associated costs was limited, with FWS data showing that the agency paid about $1.6 million in 26 cases from fiscal years 2004 through 2010.
As GAO reported in December 2014, of the 32 major rules that EPA stated it promulgated from May 31, 2008 to June 1, 2013, nine were issued following seven settlements in deadline lawsuits, all under the Clean Air Act. The terms of the settlements in these deadline suits established a schedule to issue a statutorily required rule(s) or to issue a rule(s) unless EPA determined that doing so was not appropriate or necessary pursuant to the relevant statutory provision. None of the seven settlements included terms that finalized the substantive outcome of a rule. The impact of settlements in deadline suits on EPA's rulemaking priorities was limited primarily to one office within EPA—the Office of Air Quality Planning and Standards (OAQPS)—because most deadline suits are based on provisions of the Clean Air Act for which that office is responsible. These provisions have recurring deadlines requiring EPA to set standards and to periodically review—and revise as necessary—those standards. OAQPS sets these standards through the rulemaking process. OAQPS officials said that deadline suits affect the timing and order in which rules are issued.