Environmental Litigation: Information on Cases against EPA and FWS and on Deadline Suits on EPA Rulemaking
Published: 2015-08-04T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: I am pleased to be here today as you consider the impact of litigation on  the Environmental Protection Agency (EPA) and U.S. Fish and Wildlife  Service (FWS). As the primary federal agency charged with implementing  many of the nation’s environmental laws, EPA often faces the prospect of  litigation over its regulations and other actions. For example, several  environmental statutes have provisions that allow citizens—including  individuals, states, companies, and associations—to file suit against EPA  challenging certain agency actions, such as making regulations or  permitting decisions. In addition, some laws have provisions that allow  citizens to file lawsuits to compel EPA to take statutorily required actions,  such as issuing a rule, if it has not already done so with the statutorily  required time frames. These are often called deadline suits. Where EPA  is named as the defendant in lawsuits, the Department of Justice  (Justice), which is generally responsible for defending federal agencies in  court, provides EPA’s legal defense, and EPA provides technical  expertise. Within Justice, the Environment and Natural Resources  Division handles most of the defense work on EPA environmental  litigation cases from its Washington, D.C., office, but some of the 94 U.S.  Attorneys’ Offices, particularly those in the New York City area, also  handle a small number of cases and may work on some cases managed  by the Environment and Natural Resources Division.
As one of the primary federal agencies responsible for implementing the  Endangered Species Act, FWS also faces litigation over its regulations  and actions to carry out provisions of the act. As with EPA, Justice  defends suits against FWS in court.
My statement today focuses on (1) information on cases and associated  costs as available for EPA and FWS, and (2) the impact of deadline suits  on EPA’s rulemaking. This testimony is based on reports we issued from  August 2011 to December 2014. Most of this work was about EPA. To  conduct our work, we obtained and analyzed historical data from two  components within Justice—the Environment and Natural Resources  Division and the Executive Office for U.S. Attorneys. We gathered data  from the Environment and Natural Resources Division’s Case  Management System database that tracks basic information on cases,  including lead plaintiffs’ names, filing and disposition dates, and relevant  statutes. To examine the extent to which settlements in deadline suits  have impacted 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. We interviewed individuals  from academia, an environmental group, industry, and a state official from  Oklahoma, to obtain their perspectives on deadline suits.collected information from FWS on cases where attorney fees were  sought. More details on the scope and methodology for this work can be  found in each of our issued reports. The work upon which this statement  is based was conducted in accordance with generally accepted  government auditing standards. Those standards require that we plan  and perform the audit to obtain sufficient, appropriate evidence to provide  a reasonable basis for our findings and conclusions based on our audit  objectives. We believe that the evidence obtained provides a reasonable  basis for our findings and conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: To carry out its responsibilities under the nation’s environmental laws,  EPA conducts an array of activities, such as promulgating regulations;  issuing and denying permits; approving state programs; and issuing  enforcement orders, plans, and other documents. 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. If the legal  challenge is a deadline suit, EPA works with Justice to consider several  factors in determining whether or not to settle the deadline suit and the  terms of any settlement.
subsections: section_title: Environmental Statutes and Lawsuits against EPA
paragraphs: Statutes establishing programs administered by EPA, and under which  the agency may be sued, include 10 of the nation’s most prominent  environmental laws, such as the Clean Air Act; Clean Water Act;  Comprehensive Environmental Response, Compensation, and Liability  Act (better known as the Superfund law); Emergency Planning and  Community Right-to-Know Act; Federal Insecticide, Fungicide, and  Rodenticide Act and related provisions of the Federal Food, Drug, and  Cosmetic Act; Resource Conservation and Recovery Act; Safe Drinking  Water Act; and Toxic Substances Control Act.
Generally, the federal government has immunity from lawsuits, but federal  laws authorize three types of suits related to EPA’s implementation of  environmental laws. First, most of the major environmental statutes include “citizen suit” provisions authorizing citizens—including individuals,  associations, businesses, and state and local governments—to sue EPA  when the agency fails to perform an action mandated by law. These suits  include deadline suits. 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. As a result, even if a particular  environmental statute does not authorize a challenge against EPA for a  final decision or regulation, the Administrative Procedure Act may do so.
A lawsuit challenging EPA’s failure to act may begin when the aggrieved  party sends EPA a notice of intent to sue, if required, and a lawsuit  challenging a final EPA action begins when a complaint is filed in court. Before EPA takes final action, the public or affected parties generally  have opportunities to provide comments and information to the agency. In  addition, administrative appeals procedures are available—and in many  cases required—to challenge EPA’s final action without filing a lawsuit  in a court. For example, citizens can appeal an EPA air emission permit  to the agency’s Environmental Appeals Board. These administrative  processes provide aggrieved parties with a forum that may be faster and  less costly than a court.
Generally, the environmental statutes’ citizen suit provisions require a prospective  plaintiff to first send EPA a formal notice of intent to sue. Conversely, neither these  statutes’ judicial review provisions nor the Administrative Procedure Act impose a notice  requirement. between the aggrieved party and EPA may occur anytime after the  agency action, at any point during active litigation, and even after  judgment.
section_title: The Endangered Species Act and Lawsuits against FWS
paragraphs: FWS’s mission is to work with others to conserve, protect, and enhance  fish, wildlife, and plants and their habitats for the continuing benefit of the  American people. FWS is responsible for administering the Endangered  Species Act for freshwater and land species. Under the act, FWS works  to implement its requirements, such as consulting with federal agencies to  determine if actions may affect listed species or habitats identified as  critical to the species’ survival, and acting on applications for permits  required when non-federal activities will result in take of threatened or  endangered species. The act authorizes parties to file challenges to  government actions affecting threatened and endangered species. These  lawsuits can include deadline suits as well as other types of lawsuits.
section_title: EPA and Justice Consider Several Factors in Deciding Whether to Settle Deadline Suits
paragraphs: EPA has primary regulatory authority that allows citizens to file a deadline  suit for laws including the following: the Superfund law; Clean Air Act,  Clean Water Act, Emergency Planning and Community Right-to-Know  Act, Safe Drinking Water Act, Resource Conservation and Recovery Act,  and Toxic Substances Control Act. 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. In making this decision, EPA and Justice  consider several factors to determine which course of action is in the best  interest of the government. According to EPA and Justice 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 Justice believe they  can negotiate a settlement that will provide EPA with sufficient time to  complete a final rule if required to do so.
EPA and Justice officials have often chosen to settle deadline suits when  EPA has failed to fulfill a mandatory duty because it is very unlikely that  the government will win the lawsuit. In many such cases, the only dispute  is over the appropriate remedy (i.e., fixing a new date by which EPA  should act). Additionally, in such cases, officials may believe that  negotiating a settlement is the course of action most likely to create  sufficient time for EPA to complete the rulemaking if it is required to issue  a rule. EPA and Justice have an agreement under which both must  concur in the settlement of any case in which Justice represents EPA.
See 28 C.F.R. §§ 0.160-0.163. related to water quality criteria for pathogens and pathogen indicators.  The Meese memorandum also provides that Justice should not enter into  a settlement agreement that interferes with the agency’s authority to  revise, amend, or promulgate regulations through the procedures set forth  in the Administrative Procedure Act. As such, EPA officials stated that  they have not, and would not agree to settlements in a deadline suit that  finalizes the substantive outcome of the rulemaking or declare the  substance of the final rule.
section_title: The Number of Environmental Litigation Cases against EPA and Their Associated Costs Varied with No Discernible Trend, and Information on FWS Lawsuits Is Limited
paragraphs: 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.
subsections: section_title: The Number of Environmental Litigation Cases against EPA Showed No Discernible Trend over 16 Years, and Stakeholders Stated that Various Factors Affected Yearly Numbers
paragraphs: In August 2011, we reported that there were no aggregated data on  environmental litigation or associated costs reported by federal  agencies. The key agencies involved—Justice, EPA and Treasury— maintained certain data on individual cases in decentralized databases. In  particular, each of Justice’s litigation components maintained a separate  case management system to gather information related to individual  cases. We were able to merge cases from two systems for purposes of  our work.
The average number of new cases filed against EPA each year was 155,  ranging from a low of 102 new cases filed in fiscal year 2008 to a high of  216 cases filed in fiscal year 1997 (see fig. 1). In all, Justice defended  EPA in nearly 2,500 cases from fiscal year 1995 through fiscal year 2010.  The greatest number of cases was filed in fiscal year 1997, which,  according to a Justice official, may be explained by the fact that EPA  revised its national ambient air quality standards for ozone and particulate  matter in 1997, which may have caused some groups to sue. In addition,  according to the same official, in 1997 EPA implemented a “credible  evidence” rule, which also was the subject of additional lawsuits. The fewest cases against EPA (102) were filed in fiscal year 2008, and Justice  officials were unable to pinpoint any specific reasons for the decline. In  fiscal years 2009 and 2010, the caseload increased. A Justice official said  that it is difficult to know why the number of cases might increase  because litigants sue for different reasons, and some time might elapse  between an EPA action and a group’s decision to sue.
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).
The lead plaintiffs filing cases against EPA during the 16-year period of  our August 2011 report fit into several categories. The largest category  comprised trade associations (25 percent), followed by private companies  (23 percent), local environmental groups and citizens’ groups (16  percent), and national environmental groups (14 percent). Individuals,  states and territories, municipal and regional government entities, unions  and workers’ groups, tribes, universities, and a small number of others we  could not identify made up the remaining plaintiffs (see table 1).
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. Stakeholders did not identify any single factor  driving litigation, but instead, attributed litigation to a combination of  different factors. According to most of the stakeholders we interviewed, a  new presidential administration is an important factor in groups’ decisions  to bring suits against EPA. Some stakeholders suggested that a new  administration viewed as favoring less enforcement could spur lawsuits  from environmental groups in response, or industry groups could sue to  delay or prevent the outgoing administration’s actions. Other stakeholders  suggested that if an administration is viewed as favoring greater  enforcement of rules, industry may respond to increased activity by  bringing suit against EPA to delay or prevent the administration’s actions,  and certain environmental groups may bring suit with the aim of ensuring  that required agency actions are completed during an administration they  perceive as having views similar to the groups’ own. Most of the  stakeholders interviewed also said that the development of new EPA  regulations or the passage of amendments to environmental statutes may  lead parties to file suit against the new regulations or against EPA’s  implementation of those amendments. One stakeholder noted that an  industry interested in a particular issue may become involved in litigation  related to the development of regulations because it wishes to be part of  the regulatory process and negotiations that result in a mutually  acceptable rule.
section_title: Available Data Indicated that Costs Associated with Environmental Litigation against EPA, including Payments to Plaintiffs, Have Varied over the Past 10 Years with No Discernible Trend
paragraphs: Data available for our August 2011 report from Justice, Treasury, and  EPA show that the costs associated with environmental litigation cases  against EPA have varied from year to year with no discernible trend.  Justice’s Environment and Natural Resources Division spent a total of  about $46.9 million to defend EPA in these cases from fiscal year 1998  through fiscal year 2010, averaging at least $3.6 million per year. Some  cost data from Justice were not available, however, in part because  Justice’s Environment and Natural Resources Division and the U.S.  Attorneys’ Offices did not have a standard approach for maintaining key  data for environmental litigation cases. For example, while the  Environment and Natural Resources Division tracked attorney hours by  case, the U.S. Attorneys’ Offices did not. 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.
section_title: Information Regarding Lawsuits against FWS Is Limited
paragraphs: In April 2012, we reported that the FWS did not use a data system for  cases brought against FWS to track attorney fees and costs paid by the  Endangered Species Program but that the agency tracked this  information in its Washington office using a spreadsheet. FWS officials  gathered information on those cases paid by the Washington office and  supplemented the information with four endangered species cases  identified by the agency’s regional offices. However, not all regional  offices tracked attorney fee payments, so the data may not be complete  for fiscal years 2004 through 2010. That is, FWS officials were not sure  that they had provided the complete universe of cases. FWS data show  that FWS paid about $1.6 million in the 26 cases from fiscal years 2004  through 2010.
section_title: Settlements in EPA Deadline Suits Established a Schedule for Issuing Rules, and according to EPA Officials, These Settlements Primarily Impacted a Single EPA Office
paragraphs: 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. EPA received  public comments on all but one of the draft settlements in these suits.  According to EPA officials we interviewed for our December 2014  report, settlements in deadline suits primarily affected a single office  within EPA because most deadline suits are based on provisions of the  Clean Air Act for which that office is responsible.
subsections: section_title: Settlements in Deadline Suits Established a Schedule for Issuing Rules, and EPA Received Public Comments on Drafts of Most Settlements in Deadline Suits
paragraphs: In our December 2014 report, we found that EPA issued 32 major rules  from May 31, 2008, through June 1, 2013. According to EPA officials, the  agency issued 9 of these rules following settlements in seven deadline  suits. They were all Clean Air Act rules. Two of the settlements  established a schedule to complete 1 or more rules, and five settlements  established a schedule to complete 1 or more rules or make a  determination that such a rule was not appropriate or necessary in  accordance with the relevant statute. Some of the schedules included  interim deadlines for conducting rulemaking tasks, such as publishing a  notice of proposed rulemaking in the Federal Register.
In addition to schedules, the seven settlements also included, among  other things, provisions that allowed deadlines to be modified (including  the deadline to issue the final rule) and specified that nothing in the  settlement can be construed to limit or modify any discretion accorded  EPA by the Clean Air Act or by general principles of administrative law.  Consistent with Justice’s 1986 Meese memorandum, none of the  settlements we reviewed included terms that required EPA to take an  otherwise discretionary action or prescribed a specific substantive  outcome of the final rule.
The Clean Air Act requires EPA, at least 30 days before a settlement  under the act is final or filed with the court, to publish a notice in the  Federal Register intended to afford persons not named as parties or  interveners to the matter or action a reasonable opportunity to comment  in writing. EPA or Justice, as appropriate, must then review the  comments and may withdraw or withhold consent to the proposed  settlement if the comments disclose facts or considerations that indicate  consent to the settlement is inappropriate, improper, inadequate, or  inconsistent with Clean Air Act requirements. The other major  environmental laws with provisions that allow citizens to file deadline suits  do not have a notice and comment requirement for proposed  settlements. According to an EPA official, with the exception of the  agency’s pesticide program, EPA generally does not ask for public  comments on defensive settlements (i.e., settlements on cases in which  EPA is being sued) if the agency is not required to do so by statute.
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. For each settlement, EPA published a notice in the Federal  Register providing the public the opportunity to comment on a draft of the  settlement. EPA received from 1 to 19 public comments on six of the draft  settlements. No comments were received on one of the draft settlements.  Based on EPA summaries of the comments, the comments concerned  the reasonableness of the deadlines contained in the settlements or  supported or objected to the settlements. For example, some comments  supported the deadline or asserted that the deadlines should be  accelerated, and other comments stated that EPA would have difficulty  meeting the deadlines. EPA determined that none of the comments on  any of the draft settlements disclosed facts or considerations that  indicated that consent to the settlement in question would be  inappropriate, improper, inadequate, or inconsistent with the act.
section_title: According to EPA Officials, Settlements in Deadline Suits Primarily Affected Rulemaking Priorities in a Single EPA Office
paragraphs: 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. According to EPA’s Office of  General Counsel, provisions in the Clean Air Act that authorize the  National Ambient Air Quality Standards program and Air Toxics program  account for most deadline suits. 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. For example, the Clean Air  Act requires EPA to review and revise as appropriate National Ambient  Air Quality Standards every 5 years and to review and revise as  necessary technology standards for numerous air toxics generally every 8  years.
The effect of settlements in deadline suits on EPA’s rulemaking priorities  is limited to timing and order. 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. The officials also noted that the effect of  deadline suits on the two programs differs because of the different  characteristics of the programs.
In conclusion, environmental statutes allow litigation to check the  authority of federal agencies as they carry out—or fail to carry out—their  duties. 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. Information on deadline suits showed that the  effect of settlements in deadline suits was primarily on one office and  limited to the timing and order in which rules were issued.
Chairman Rounds, Ranking Member Markey, and Members of the  Subcommittee, this concludes my prepared statement. I would be  pleased to answer any questions you may have at this time.
section_title: GAO Contact and Staff Acknowledgments
paragraphs: If you or your staff members have any questions about this testimony,  please contact me at (202) 512-3841 or gomezj@gao.gov. Contact points  for our Offices of Congressional Relations and Public Affairs may be  found on the last page of this testimony. Susan Iott (Assistant Director),  Charlie Egan, Cindy Gilbert, Rich Johnson, Tracey King, Marya Link,  Maria Strudwick, and Kiki Theodoropoulos made key contributions to this  testimony.
This is a work of the U.S. government and is not subject to copyright protection in the  United States. The published product may be reproduced and distributed in its entirety  without further permission from GAO. However, because this work may contain  copyrighted images or other material, permission from the copyright holder may be  necessary if you wish to reproduce this material separately.