Interior Department issues order to avoid settlements

Critics say the decree will slow down the implementation of enacted laws.

 

Salmon are an enduring icon of the Pacific Northwest, essential to the region’s ecosystems and central to many of its Indigenous cultures. They’re also in serious danger of extinction in many of Washington’s waterways, partly because water-quality standards for rivers often fall below what is necessary for endangered fish to recover. 

So four years ago, the conservation group Northwest Environmental Advocates sued the Environmental Protection Agency, saying they had failed to put in place adequate measures to protect endangered salmon from water pollution. The parties decided to settle, but didn’t reach a final agreement until July — two years later than the nonprofit group expected — partly because of an outside of the courts. In September, Interior Department Deputy Secretary David Bernhardt .

Interior Department Deputy Secretary David Bernhardt, right, pictured with Interior Department Secretary Ryan Zinke, announced new policies for dealing with environmental settlements on Sept, 11, 2018.
U.S. Department of the Interior

The policies are supposed to increase public input in the settlement process, slow it down, and help the EPA and Interior Department get out of paying environmental groups’ lawyers’ fees. The Trump administration says the new rules are necessary to prevent government agencies from colluding with environmental groups to reach settlements that favor their interests. But critics say these rules only delay the implementation of federal laws designed to protect the environment, leaving ecosystems and wildlife vulnerable while agencies drag their feet.

The agencies’ policy reforms, which include a requirement for a public comment period prior to settlement and the creation of an online database of agreements, are in response to a practice called “sue and settle.” Often, groups that sue the federal government negotiate agreements that keep cases from going to court; these settlements allow both sides to avoid a costly trial while still ensuring that government agencies follow the law. Though regulated industries and administration officials denounce lawsuit-happy environmental groups, the rhetoric surrounding sue and settle typically disregards the fact that agencies choose to settle because, as , “the Department is likely to lose.” According to criticizing the new EPA policy, “It is EPA’s failure to comply with legal requirements that is the problem, not the people who sue EPA.”

Some influential groups oppose the government’s decision to settle cases out of court. The U.S. Chamber of Commerce, for example, a business and industry lobbying group rather than a government entity, says the process and creates new rules and regulations that cost companies billions of dollars.

But lawsuits alone don’t create laws, and the vast majority of environmental settlements simply lay out a framework for following existing laws. Many environmental laws impose timelines for actions, such as deciding whether a species belongs on the endangered species list, and federal agencies often miss those legal deadlines. But through settlements, agencies agree to terms that set timelines for them to comply with the law. A legal analysis published by lawyer Ben Tyson in the Virginia Law Review brokered between environmental groups and the Obama administration, and found that all but four of the agreements involved setting deadlines for compliance.

In addition to creating timelines for environmental protections, laws like the Clean Air Act, Clean Water Act and Endangered Species Act include provisions for federal agencies to pay their opponents’ attorneys’ fees when the agencies lose — or settle — a case. The idea is “to deputize private citizens to uphold the law,” said Allison LaPlante, the co-director of the Earthrise environmental law center at Lewis and Clark Law School, which has agreed to settle the case on water-quality standards in Washington. But because Earthrise, like many nonprofits, has a limited budget, eliminating attorney fee reimbursement limits the number of lawsuits the group can bring. 

The quiet resolution of the Washington salmon case, the first to pass through the EPA’s new policies for settlement agreements, offers a glimpse of the change’s potential impacts. Prolonging the settlement process, for example, makes it harder for the center to take on additional cases, LaPlante said. And the new policy hasn’t done much to engage the public: Only six comments were made on the Washington settlement agreement, and all of them supported endangered species.

The net result of the new sue-and-settle policies will likely mean a greater burden on agency staff, as more time and money is spent taking more cases to court instead of reaching settlements, said Justin Pidot, a University of Denver law professor and former attorney for the Justice and Interior departments. And as cases get delayed, regulations that could help ensure clean waterways and a healthy habitat for endangered species like salmon lag behind. “It’s a net win for no one,” Pidot said, “except those that benefit from slowing down enforcement of the law.”

Carl Segerstrom is an editorial fellow at NewTowncarShare News. Email him at [email protected] or submit a letter to the editor

NewTowncarShare News Classifieds
  • Borderlands Restoration, L3c is the founding organization of the Borderlands Restoration Network. Borderlands Restoration Network (BRN) is both an independent public charity and a collaborative...
  • Assistant Editor, NewTowncarShare News, Telecommute. Edit, write and help shape digital strategy for one of the best magazines in the country. Committed to inclusivity....
  • Associate Editor, West-north Desk, NewTowncarShare News, Telecommute. Dream job. Write, edit and contribute to the vision and strategy of one of the best magazines...
  • Take over the reins of a dynamic grassroots social justice group that protects Montana's water quality, family farms and ranches, & unique quality of life....
  • EXECUTIVE DIRECTOR - Winter Wildlands Alliance seeks an experienced and highly motivated individual to lead and manage the organization as Executive Director. Visit https://winterwildlands.org/executive-director-search/ for...
  • Background: The Birds of Prey NCA Partnership is a non-profit 501(c)(3) organization based in Boise, Idaho, which was established in 2015 after in-depth stakeholder input...
  • Southwest Borderlands Initiative Professor of Native Americans and the News Media The Walter Cronkite School of Journalism and Mass Communication at Arizona State University is...
  • AWF seeks an energetic Marketing and Communications Director. Please see the full job description at https://azwildlife.org/jobs
  • The Southwest Communications Director will be responsible for working with field staff in Arizona, Colorado and New Mexico to develop and execute detailed communication plans...
  • An intentional community designed for aging in place. Green built with Pumice-crete construction (R32), bamboo flooring, pine doors, T&G ceiling with fans, and maintenance free...
  • (CFROG) is a Ventura County, CA based watch-dog and advocacy non-profit organization. cfrog.org
  • Take your journalism skills to the next level and deepen your understanding of environmental issues by applying for the 2019-2020 Ted Scripps Fellowships in Environmental...
  • The San Juan Mountains Association is seeking a visionary leader to spearhead its public lands stewardship program in southwest Colorado. For a detailed job description...
  • The Cascade Forest Conservancy seeks a passionate ED to lead our forest protection, conservation, education, and advocacy programs.
  • Mountain Pursuit is a new, bold, innovative, western states, hunting advocacy nonprofit headquartered in Jackson, Wyoming. We need a courageous, hard working, passionate Executive Director...
  • The Draper Natural History Museum (DNHM) at the Buffalo Bill Historical Center of the West in Cody, WY, invites applications for the Willis McDonald, IV...
  • Couple seeks quiet, private, off-grid acreage in area with no/low cell phone service and no/low snowfall. Conservation/bordering public lands a plus. CA, OR, WA, ID,...
  • Former northern Sierra winery, with 2208 sq.ft. commercial building, big lot, room to expand.
  • The dZi Foundation is seeking a FT Communications Associate with a passion for Nepal to join our team in Ridgway, Colorado. Visit dzi.org/careers.
  • Available now for site conservator, property manager. View resume at http://skills.ojaidigital.net.