Key Environmental Laws Allow Deadline Suits and EPA Considers Several Factors in Responding to Those Suits

GAO identified seven key environmental laws that allow individuals to file  a deadline suit to compel EPA to issue a statutorily required rule, or  perform a statutorily required review of a rule to determine whether to  revise the rule. EPA works with DOJ to consider several factors in  determining whether or not to settle the deadline suit and the terms of any  settlement. Table 1 lists  the seven laws. According to EPA and DOJ officials, these  factors include: (1) the cost of litigation, (2) the likelihood that EPA will win  the case if it goes to trial, and (3) whether EPA and DOJ believe they can  negotiate a settlement that will provide EPA with sufficient time to  complete a final rule if required to do so. Settlements Resulting in Major Rules Included Rulemaking Schedules, and EPA Received Public Comments on Drafts of Most Settlements

The terms of settlements in deadline suits that resulted in EPA issuing  major rules in the last 5 years established a schedule to either promulgate  a statutorily required rule or to 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. The 9 major rules EPA issued from May 31, 2008 to June 1, 2013  following seven settlements in deadline suits were Clean Air Act rules. EPA received between one and 19 public comments on six of  the draft settlements. According to EPA Officials, Settlements in Deadline Suits Primarily Affect Rulemaking Priorities in a Single EPA Office

According to EPA officials, settlements in deadline suits primarily affect a  single 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 appropriate or necessary—those standards. OAQPS sets these standards through the rulemaking process. The effect of settlements in deadline suits on EPA’s rulemaking priorities  is limited. OAQPS officials said that deadline suits impact the timing and  order in which rules are issued by the NAAQS program and the Air Toxics  program, but not which rules are issued. GAO staff members who made major  contributions to this report are listed in appendix V.

Appendix I: Objectives, Scope, and Methodology

The objectives of this report are to examine (1) key environmental laws  that allow citizens to file deadline suits that may compel the  Environmental Protection Agency (EPA) to conduct a rulemaking and the  factors EPA and the Department of Justice (DOJ) consider in determining  whether or not to settle these lawsuits, (2) the terms of settlements in  deadline suits that led EPA to promulgate major rules in the last 5 years  and the extent to which the public commented on the terms of the  settlements, and (3) the extent to which settlements in deadline suits  have affected EPA’s rulemaking priorities. To understand the factors that EPA considers in  determining whether or not to settle deadline suits, we held discussions  with officials from EPA’s Office of General Counsel and DOJ because  both agencies are involved in making these determinations. To examine the extent to which the public commented on the terms of the  settlements, we obtained from EPA legal memoranda summarizing the  number and content of public comments EPA received on drafts of the  settlements. Because each of the major rules issued following  settlements in deadline suits were Clean Air Act rules, EPA solicited  public comments on drafts of the settlements as required by the Clean Air  Act. To examine the extent to which settlements in deadline suits have  affected EPA’s rulemaking priorities, we obtained from EPA’s Office of  General Counsel data on deadline suits it had settled from January 2001  through July 2014 and the EPA office(s) responsible for implementing the  terms of the settlements.
Why GAO Did This Study

Laws, such as the Clean Air Act, require EPA to issue rules by specific deadlines. Citizens can sue EPA for not issuing rules on time. These lawsuits are sometimes known as deadline suits. EPA sometimes negotiates a settlement to issue a rule by an agreed upon deadline. Some have expressed concern that the public is not involved in the negotiations and that settlements affect EPA rulemaking priorities. GAO was asked to review EPA settlements in deadline suits. This report examines (1) key environmental laws that allow deadline suits and the factors EPA and DOJ consider in determining whether to settle these suits, (2) the terms of settlements that led EPA to issue major rules in the last 5 years and the extent to which the public commented on the settlements, and (3) the extent to which settlements in deadline suits have affected EPA's rulemaking priorities.
GAO identified key laws allowing deadline suits through legal research and interviewed agency officials to understand the factors considered in determining whether to settle these suits. EPA identified the major rules it issued following settlements and GAO examined the text of those settlements. GAO examined EPA documentation to determine the extent to which the public commented on the settlements. Through data from EPA's Office of General Counsel and discussions with officials, GAO determined the extent to which settlements affected EPA's rulemaking priorities.

What GAO Found

GAO identified seven key environmental laws that allow citizens to file a deadline suit against the Environmental Protection Agency (EPA) (see table) and EPA and the Department of Justice (DOJ) consider several factors in determining whether or not to settle these suits. The seven key environmental laws include, among others, the Clean Air Act and the Clean Water Act. EPA works with DOJ—which represents EPA in litigation —to decide whether to settle a deadline suit. EPA and DOJ officials stated that the factors they consider include (1) the cost of litigation, (2) the likelihood that EPA will win the case if it goes to trial, and (3) whether EPA and DOJ believe they can negotiate a settlement that will provide EPA with sufficient time to complete a final rule if required to do so.
Of the total number of major rules EPA 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 Clean Air Act requires EPA to solicit public comments on drafts of settlements. The nine major rules were Clean Air Act rules, and EPA solicited public comments on all of the drafts. EPA received between 1 and 19 comments on six of the settlements and no comments on one settlement. EPA determined that none of the comments disclosed facts or other considerations compelling it to withdraw or withhold consent for the settlement.
The effect of settlements in deadline suits on EPA's rulemaking priorities is limited. According to EPA officials, settlements in deadline suits primarily affect a single 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 but not which rules are issued.
Source: GAO. | GAO-15-34

What GAO Recommends

GAO is not making any recommendations in this report. DOJ and EPA concur with GAO's findings.