Environmental Litigation: Impact of Deadline Suits on EPA's Rulemaking Is Limited
Released: 2015-01-14T00:00:00


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

section_title: What GAO Found
paragraphs: 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

section_title: What GAO Recommends
paragraphs: GAO is not making any recommendations in this report. DOJ and EPA concur with GAO's findings.

section_title: Letter
paragraphs: Laws such as the Clean Air Act and the Clean Water Act require the  Environmental Protection Agency (EPA) to take certain actions, such as  issuing rules, to implement provisions of the law within certain statutorily  designated time frames. In addition, some laws have provisions that allow  any person or entity (including individuals, associations, businesses, and  state and local governments) to file lawsuits to compel EPA to take  statutorily required actions, such as issuing a rule, if it has not already  done so within a statutorily designated time frame. Such lawsuits are  sometimes referred to as deadline suits. When faced with deadline suits,  EPA and the Department of Justice (DOJ)—which represents EPA in  litigation—typically negotiate a settlement with the person or entity filing  the lawsuit.

Some members of Congress and certain sectors of the public have  expressed concern that, in settling these lawsuits, EPA is committing  itself to significant new rulemakings and that affected stakeholders, and  the public are unable to participate in the negotiating process before a  settlement is finalized. They have also expressed concern about the  impact of these settlements on EPA’s rulemaking priorities.

Under the Congressional Review Act (CRA), all rules, including those  issued by EPA, are classified as either a major rule or a nonmajor rule.  The CRA defines a “major” rule as one that has resulted in or is likely to  result in (1) an annual effect on the economy of $100 million or more; (2)  a major increase in costs or prices for consumers, individual industries,  federal, state, or local government agencies, or geographic regions; or (3)  significant adverse effects on competition, employment, investment,  productivity, innovation, or on the ability of U.S.-based enterprises to  compete with foreign-based enterprises in domestic and export markets.

You asked us to review EPA’s practices involving settlements in deadline  suits that may compel EPA to issue a rule. This report examines (1) key  environmental laws that allow citizens to file deadline suits that may  compel EPA to conduct a rulemaking and the factors EPA and 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 address the first objective, we identified through legal research key  environmental laws for which EPA has primary regulatory authority and  the extent to which these laws allow citizens to file lawsuits that may  compel agency rulemaking. We also interviewed EPA and DOJ officials to  understand the factors EPA and DOJ consider in determining whether or  not to settle deadline suits. To address the second objective, we  accessed a database that GAO maintains to help implement the CRA to  identify the major rules EPA issued from May 31, 2008 through June 1,  2013. We determined that the data were sufficiently reliable for the  purpose of identifying major rules issued by EPA. EPA officials identified  which of these rules EPA issued following a settlement in a deadline suit,  and we obtained those settlements. We relied on EPA because neither  EPA nor DOJ maintains a database that links settlements to rules, and  there is no comprehensive public source of such information. We  determined the extent to which the public commented on the terms of the  settlements by examining EPA documentation on the number and content  of the public comments. To address the third objective, we examined the  extent to which settlements have affected EPA rulemaking priorities by  obtaining data from EPA’s Office of General Counsel on deadline suits  EPA settled from January 2001 through July 2014 and the EPA offices  responsible for implementing the terms of the settlements. We  determined that the data were sufficiently reliable for the purpose of this  report. The data showed that one EPA office was responsible for  promulgating most of rules following settlements in deadline suits. We  spoke with officials from this office to determine the extent to which  settlements in deadline suits affected the office’s rulemaking priorities.  We also spoke with EPA budget officials knowledgeable about how EPA  allocates resources among its offices to determine the extent to which  deadline suits affect the resources allocated to offices not subject to  deadline suits. Appendix I discusses our objectives, scope, and  methodology in greater detail.

We conducted this performance audit from September 2013 to December  2014 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: For the purposes of this report, we use the term deadline suit to mean a  lawsuit in which an individual or entity sues because EPA has allegedly  failed to perform any nondiscretionary act or duty by a deadline  established in law. A nondiscretionary act or duty is an act or duty  required by law. This report examines deadline suits that seek to compel  EPA to either (1) issue a statutorily required rule when that rule has a  deadline in law or (2) issue a statutorily required rule or make a  determination that issuing such a rule is not appropriate or necessary  pursuant to the relevant statutory provision, when issuing that rule or  making that determination has a deadline in law. For example, a deadline  suit may involve a person suing EPA because EPA failed to issue a rule  by a date established in statute. Similarly, a person may sue EPA  because it missed a recurring deadline to review and revise, as  necessary or appropriate, an existing rule. In August 2011, we reported  that the number of new environmental litigation cases—of all types—filed  against EPA each year from fiscal year 1995 through fiscal year 2010  averaged 155 cases per year.

Before filing a deadline suit, a person generally must file a Notice of Intent  to Sue (NOI) with EPA. Among other things, a NOI generally must  identify the provision(s) of the law that requires EPA to perform an act or  duty and a description of the action taken or not taken by EPA that is  claimed to constitute a failure to comply with the provision. Sixty days  after filing the NOI, the filer may initiate a deadline suit seeking a court  order requiring EPA to complete the statutorily required action.

A settlement takes the form of either a settlement agreement or a consent  decree. For purposes of this report, the term settlement refers to both  settlement agreements and consent decrees. Both are negotiated  agreements between EPA and the plaintiff. A settlement agreement is not  subject to court approval but can result in a stay of the lawsuit. If EPA  fails to meet the terms of the settlement agreement, then the plaintiff can  ask the court to lift the stay in order to proceed with the lawsuit. A consent  decree is entered as a court order. If EPA fails to meet the terms of a  consent decree, the court can enforce or modify the consent decree,  including citing EPA for contempt of court.

Unless a more specific statute governs, when EPA or any other federal  agency promulgates a rule, whether or not in conjunction with a deadline  suit, it generally follows procedures prescribed in the Administrative  Procedures Act (APA). Among other things, the APA governs the  process by which federal agencies develop and issue regulations. It  includes requirements for publishing notices of proposed and final rules in  the Federal Register and for providing opportunities for the public to  comment on notices of proposed rulemaking. Many rules promulgated  under the authority of the Clean Air Act do not follow the procedures  prescribed in the APA, but rather follow similar but more specific  procedures set forth in the act.

section_title: Key Environmental Laws Allow Deadline Suits and EPA Considers Several Factors in Responding to Those Suits
paragraphs: 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.
subsections: section_title: Key Environmental Laws Allow Citizens to File Deadline Suits to Compel EPA Rulemaking
paragraphs: GAO identified seven key environmental laws for which EPA has primary  regulatory authority that allow citizens to file a deadline suit. Table 1 lists  the seven laws.

With the exception of the Emergency Planning and Community Right-to- Know Act (EPCRA), the key environmental laws allow citizens to file  deadline suits to compel EPA to perform any act or duty required by the  respective law, including issuing any required rules. For example, the  provision in the Clean Air Act states: “ny person may commence a civil  action on his own behalf - … against the Administrator where there is  alleged a failure of the Administrator to perform any act or duty under this  chapter which is not discretionary with the Administrator.” The provision  in EPCRA that allows citizens to file deadline suits is different from the  other key environmental laws because citizen suits may only be filed to  compel certain actions listed in the law.

section_title: EPA and DOJ Consider Several Factors in Deciding Whether to Settle Deadline Suits
paragraphs: Within EPA, the Office of General Counsel is responsible for handling  deadline suits. It works with the appropriate program offices in EPA, such  as the Office of Air and Radiation (OAR) or the Office of Water, when  negotiating settlements for deadline suits. EPA’s Office of General  Counsel also coordinates with DOJ’s Environmental and Natural  Resources Division.

According to EPA and DOJ 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 or  allow the lawsuit to proceed. In making this decision, EPA and DOJ  consider several factors to determine which course of action is in the best  interest of the government. 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. EPA and DOJ officials told us  that they often choose 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  DOJ have an agreement under which both must concur in the settlement  of any case in which DOJ represents EPA.

See 28 C.F.R. §§ 0.160-0.163. duty. Thus, in general, this policy restricts DOJ from entering into a  settlement if it commits EPA to take an otherwise discretionary action,  such as including specific substantive content in the final rule unless an  exception to this restriction is granted by the Deputy Attorney General or  Associate Attorney General of the United States. According to EPA and  DOJ officials, to their knowledge, EPA has been granted only one  exception to the general restriction on creating mandatory duties through  settlements—a 2008 settlement in a suit related to water quality criteria  for pathogens and pathogen indicators. The Meese memo also provides  that DOJ 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 APA.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: Settlements Resulting in Major Rules Included Rulemaking Schedules, and EPA Received Public Comments on Drafts of Most Settlements
paragraphs: 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. EPA received public  comments on all but one of the draft settlements in these suits.
subsections: section_title: Settlements in Deadline Suits Established a Schedule for Issuing Rules
paragraphs: EPA issued 32 major rules from May 31, 2008 through June 1, 2013 (see  app. II). According to EPA officials, the agency issued 9 of these rules  following settlements in deadline suits. They were all Clean Air Act rules.  The 9 rules stem from seven settlements. Two of the settlements  established a schedule to complete 1 or more rules, and five 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. Appendix III provides information on the  schedules contained in each settlement.

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 DOJ’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 seven settlements, committing EPA to issue the 9 statutorily required  rules, were finalized between about 10 months and more than 23 years  after the applicable statutory deadlines. For each of the 9 rules, figure 1  shows the date the regulation was due, the date the settlement was filed  with the court, and the date the final rule was published in the Federal  Register.

section_title: EPA Received Public Comments on Drafts of Most Settlements in Deadline Suits
paragraphs: 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 DOJ, 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 six key 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 if  the agency is not required to do so by statute.

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.  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 between one and 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, others 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. Table 2 shows the number of public comments EPA received on  each draft settlement.

section_title: According to EPA Officials, Settlements in Deadline Suits Primarily Affect Rulemaking Priorities in a Single EPA Office
paragraphs: 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. According to EPA’s  Office of General Counsel, provisions in the Clean Air Act that authorize  the National Ambient Air Quality Standards (NAAQS) 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 NAAQS 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. 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. The officials also noted that the  impact of deadline suits on the two programs differs because of the  different characteristics of the programs.

Regarding the NAAQS program, the Clean Air Act requires EPA to review  and revise as appropriate the NAAQS standards for six pollutants—called  criteria pollutants—at 5-year intervals. NAAQS standards limit the  allowable concentrations of criteria pollutants in the ambient air. There is  more than one standard for each criteria pollutant. EPA establishes the  required standards through the rulemaking process and recently  conducted seven NAAQS reviews to review the standards and revise as  appropriate. According to an OAQPS official, prior to 2003, EPA did not  review NAAQS on a regular cycle. Beginning in 2003, EPA faced four  deadline suits for failure to complete NAAQS reviews for the six criteria  pollutants. EPA settled two of these suits and was subject to a court order  regarding the other two suits after it failed to successfully negotiate  settlements with the plaintiffs. The settlements and court orders led EPA  to perform the statutorily required reviews of the NAAQS standards for  the six criteria pollutants and to promulgate seven rules—one for each  NAAQS review. The last of these seven rules was promulgated in April  2012. According to officials, the deadline suits addressing the NAAQS  standards did not affect which NAAQS standards were reviewed since  EPA reviewed all of the standards. According to officials, the deadline  suits did affect the timing and order in which EPA conducted the reviews  to accommodate the time frames in the settlements and court orders.  Additionally, according to officials, as a result of the experience in  responding to the deadline suits, the agency is striving to maintain the 5- year statutory review cycle for criteria pollutants going forward. However,  officials noted that it is difficult for EPA to complete its NAAQS reviews  every 5 years. From April 2012 through September 2014, EPA has  promulgated one rule following a NAAQS review after it settled a deadline  suit and has missed the statutory deadline for reviewing the standards of  two other criteria pollutants, one of which EPA is under court order to  complete by October 2015 following a deadline suit.

Regarding the Air Toxics program, OAQPS officials said that the impact  of deadline suits on the Air Toxics program is different from that of the  impact on the NAAQS program because of the large number of rules that  the Air Toxics program promulgates. For example, the Clean Air Act  establishes a schedule under which EPA established 120 standards to  reduce the emissions of 187 hazardous air pollutants. These National Emission Standards for Hazardous Air Pollutants (NESHAP) apply to  certain categories of sources of these pollutants, such as cement  manufacturing, municipal solid waste landfills, and semiconductor  manufacturing. Generally, the act requires EPA, no less often than every  8 years, to review the standard, and revise as necessary. It makes any  necessary revisions through the rulemaking process. The review must  take into account developments in practices, processes, and control  technologies. For sources subject to Maximum Achievable Control  Technology (MACT) standards promulgated pursuant to section 112(d)(2)  of the Clean Air Act, EPA must also conduct a residual risk assessment  within 8 years after the initial promulgation of the standard. EPA refers  to these two reviews together as the risk and technology review (RTR).  As of October 2014, EPA has completed 28 RTRs (27 of these reviews  following deadline suits) and has not completed 57 RTRs for which the  statutory deadline has passed and 36 RTRs for which the statutory  deadline has not passed. Additionally, officials report that, currently,  most of the resources available to complete RTRs are focused on a 2011  settlement. This settlement listed 27 NESHAPs for which RTRs were  overdue. OAQPS officials said that they have been unable to meet all of  the time frames contained in the 2011 settlement and, as a result, have  negotiated amendments to the settlement extending the time frames.  Officials said that they intend to complete all of the overdue RTRs but are  focused on fulfilling the terms of the 2011 settlement and several other  settlements to which EPA has entered into that address a smaller number  of reviews. Additionally, in September 2013, EPA received a NOI  concerning 43 additional NESHAPs for which a RTR is overdue. EPA  officials said that they are engaged in settlement discussions over one of  these reviews for which EPA has been sued.

Additionally, we discussed with EPA budget officials the potential impact  of budget allocation decisions associated with deadline suits on EPA  offices that are not subject to deadline suits. According to the budget  officials, EPA accounts for anticipated workload arising out of litigation in  its budgeting cycle for affected programs but does not make changes in  existing budget allocations specifically to address settlements in deadline  suits. Thus, according to the official, the resources available to EPA  offices not subject to these settlements are not directly impacted by the  settlements.

section_title: Agency Comments
paragraphs: We provided a draft of this report to EPA and DOJ for review and  comment. In written comments from EPA, reproduced in appendix IV, the  agency generally concurs with our analysis and states that the report  accurately describes EPA’s approach to deadline suit litigation brought  against it. EPA also provided technical comments, which we incorporated  as appropriate. In addition, in an e-mail received November 24, 2014, the  DOJ Audit Liaison stated that the DOJ concurs with our report and has no  additional comments.

As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the appropriate  congressional committees, the Attorney General, the Administrator of the  EPA, and other interested parties. In addition, the report will be available  at no charge on the GAO website at http://www.gao.gov.

If you or your staff members have any questions about this report, 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 report. GAO staff members who made major  contributions to this report are listed in appendix V.

section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: 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 examine the key environmental laws that allow citizens to file deadline  suits that may compel EPA to conduct a rulemaking, we identified through  legal research nine key environmental laws for which EPA has primary  regulatory authority. Through additional legal research, we determined  that two of these laws do not include provisions that permit citizens to file  deadline suits. These laws are the Federal Insecticide, Fungicide, and  Rodenticide Act and related provisions of the Federal Food, Drug, and  Cosmetic Act. 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. We also  discussed the processes and procedures that EPA follows when settling  citizen deadline suits.

To examine the terms of settlements in deadline suits that led EPA to  promulgate major rules in the last 5 years, we developed a list of major  rules EPA issued from May 31, 2008 through June 1, 2013 by searching  a database that GAO maintains to help implement the Congressional  Review Act. We determined that the data were sufficiently reliable for the purpose of identifying major rules issued by EPA. EPA officials then  identified which major rules EPA issued following a settlement in a  deadline suit. We relied on EPA because neither EPA nor DOJ maintains  a database that links settlements to rules, and there is no comprehensive  public source of such information. For the purposes of this report, we use  the term deadline suit to mean a lawsuit in which an individual or entity  sues because EPA has allegedly failed to perform any nondiscretionary  act or duty by a deadline established in law. A nondiscretionary act or  duty is an act or duty required by law. This report only examines deadline  suits that seek to compel EPA to either (1) issue a statutorily required rule  when that rule has a deadline in law or (2) issue a statutorily required rule  or make a determination that issuing such a rule is not appropriate or  necessary pursuant to the relevant statutory provision, when issuing that  rule or making that determination has a deadline in law. We did not  review other types of suits against EPA. We obtained the settlements by  accessing court records through the Public Access to Court Electronic  Records. We then analyzed the content of each settlement and  summarized the results.

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. The act also requires EPA or DOJ to consider any public comments  provided on settlements and authorizes them to 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 the Clean Air Act requirements.  EPA made these determinations and documented its decisions in legal  memoranda that it provided to us. We analyzed the contents of these  memoranda to determine the extent and nature of the public comments  EPA received on draft settlements.

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. We assessed the reliability of the data by  interviewing agency officials knowledgeable about the data. We  determined that the data were sufficiently reliable for the purposes of this  report. The data showed that one office was responsible for implementing  the terms of most of the settlements. We spoke with officials from this  office to understand the extent to which settlements in deadline suits had  affected the timing and order of the rules they promulgated, as well as  which rules they promulgated. We also spoke with EPA budget officials to  understand the extent to which settlements in deadline suits affected  budget allocation decisions for EPA offices not subject to settlements in  deadline suits.

We also interviewed individuals from academia, an environmental group,  industry, and a state official from Oklahoma, to obtain their perspectives  on deadline suits. We chose these individuals because they had  experience or knowledge related to deadline suits and could provide the  perspective of different stakeholder groups. For example, one interviewee  provided legal representation for an environmental group that filed a  deadline suit, and another interviewee authored a report critical of how  EPA responds when faced with a deadline suits. The views of these  individuals cannot be generalized to those with whom we did not speak.

We conducted this performance audit from September 2013 to December  2014 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.

section_title: Appendix II: Major Rules Issued by EPA from May 31, 2008 to June 1, 2013
paragraphs: The Environmental Protection Agency (EPA) issued 32 major rules from  May 31, 2008 to June 1, 2013. According to EPA officials, the agency  issued 9 of these rules following settlements in deadline suits and issued  5 of the 32 rules to comply with court orders following deadline suits in  which plaintiffs and EPA were unable to reach a settlement. The  remaining 18 rules, according to agency officials, were not associated  with a deadline suit. Table 3 lists the 32 major rules EPA issued from May  31, 2008 to June 1, 2013.

section_title: Appendix III: Contents of Settlements Following Deadline Suits That Compelled EPA to Issue 9 Rules from May 31, 2008 to June 1, 2013
paragraphs: The Environmental Protection Agency (EPA) issued 9 major rules from  May 31, 2008 to June 1, 2013 following seven settlements in deadline  suits. Each of the seven settlements established a schedule to either  issue a statutorily required rule or make a determination that such a rule  is not appropriate or necessary pursuant to the relevant statutory  provision. EPA negotiated extensions to the deadlines to issue the final  rules in five of the seven settlements. Table 4 summarizes the contents of  the seven settlements.

section_title: Appendix IV: Comments from the Environmental Protection Agency

section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact

section_title: Staff Acknowledgments
paragraphs: In addition to the individual named above, Vincent P. Price, Assistant  Director; Rodney Bacigalupo; Elizabeth Beardsley; John Delicath;  Charles Egan; Cindy Gilbert; Tracey King; and Kathryn Smith made key  contributions to this report.


Question-summary annotations: questions: question: What laws did GAO identify?
answer: 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.
child_questions: question: What did these laws include?
answer: The seven key environmental laws include, among others, the Clean Air Act and the Clean Water Act.

question: How do EPA and DOG decide whether to settle a deadline suit?
answer: 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.

questions: question: What did the terms of settlements in EPA deadline lawsuits establish?
answer: 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.
child_questions: question: What did the settlements not include?
answer: None of the seven settlements included terms that finalized the substantive outcome of a rule.

question: What does the Clean Air Act require regarding settlements?
answer: The Clean Air Act requires EPA to solicit public comments on drafts of settlements.

question: What did EPA determine about comments on settlements?
answer: EPA determined that none of the comments disclosed facts or other considerations compelling it to withdraw or withhold consent for the settlement.

questions: question: Why do deadline suits primarily affect OAQPS?
answer: 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.
child_questions: question: How do deadline suits affect OAQPS?
answer: OAQPS officials said that deadline suits affect the timing and order in which rules are issued but not which rules are issued.

question: What do provisions require of EPA?
answer: These provisions have recurring deadlines requiring EPA to set standards and to periodically review—and revise as necessary—those standards.
child_questions: question: How is OAQPS associated with these provisions?
answer: OAQPS sets these standards through the rulemaking process.

questions: question: What do laws such as the Clean Air Act require?
answer: Laws, such as the Clean Air Act, require EPA to issue rules by specific deadlines.
child_questions: question: What power do citizens have regarding this requirement?
answer: Citizens can sue EPA for not issuing rules on time.

question: What is the concern with the EPA negotiating settlements to issue rule?
answer: 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.

question: What was GAO asked to review?
answer: GAO was asked to review EPA settlements in deadline suits.
child_questions: question: What does the report that GAO wrote examine?
answer: 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.

questions: question: What did GAO identify?
answer: 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.
child_questions: question: How did GAO interact with the rules EPA identified?
answer: EPA identified the major rules it issued following settlements and GAO examined the text of those settlements.

question: What documentation did GAO identify?
answer: GAO examined EPA documentation to determine the extent to which the public commented on the settlements.

question: How did GAO determine extent to which settlements affected EPA's rulemaking priorities?
answer: 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.