“The days of regulation through litigation are over.” So said EPA Administrator Scott Pruitt in October 2017.
His intentions were right, but the bitter aftertaste of “sue and settle” lingers on. In Missouri, we labor still under the yoke of such regulation.
In February 2016, a special interest group filed a lawsuit asking a federal court to order an all-too-willing EPA to promulgate new rules for nutrients in Missouri lakes. In December 2016, the EPA agreed to issue new rules by December 2017 — warp speed for a rulemaking concerning more than 2,482 reservoirs in three different ecoregions — and, as often happens in these cases, paid for the special interest group’s attorneys’ fees to boot. The court blessed the “settlement” and issued an order with the force of law.
So, a special interest group thinks Missouri needs nutrient criteria, and now it will get them, with free two-day shipping.
The problem is that, other than a half dozen activists in St. Louis and one judge in Jefferson City, none of Missouri’s six million citizens ever had any say in the matter. Those remaining six million Missourians have real and substantial interests, both in their waterways and in the use of their other resources that are no less important than those of special interest groups in St. Louis.
None of those six million Missourians voted for any special interest groups in St. Louis or federal judges in Jefferson City. Further, none of those six million Missouri citizens was even permitted to argue before the judge on the merits of the interest group’s claim. When three groups with substantial interests in the regulation of Missouri’s waterways — municipalities, wastewater treatment plant operators, and public utilities — sought to intervene, the special interest group opposed the intervention, and the judge denied it.
Missouri has a democratically accountable process for the regulation of its waterways: The elected governor appoints, and the elected state senators confirm, citizen members of the Missouri Clean Water Commission, on which I serve. The commission — not the EPA — bears the primary responsibility for regulating Missouri’s waterways.
Unlike the “sue and settle” litigators, the commission holds regular open meetings after public notice and takes both written and oral comments from all interested parties — including municipalities, wastewater treatment plant operators, public utilities, concerned citizens, and even special interest groups. The commission openly discusses matters in meetings broadcast live over the web and then votes in front of anyone who cares to watch. Missouri’s own rulemaking process is a model of transparency.
The court’s order implementing the Obama EPA’s settlement with its friends states that the agreement binds only the interest group and the EPA. It could hardly do otherwise, since the commission was not served as a defendant and had no say in the agreement settling the supposed dispute in question. Nonetheless, the agreement states that it does not apply if the commission introduces, and the EPA approves, nutrient criteria in advance of the deadline established in the settlement.
The commission labored to meet the deadline. Working with Missouri stakeholders, environmental scientists, and a dataset containing more than 67,000 records from more than 200 reservoirs, the commission developed and proposed nutrient criteria. The interest group submitted comments opposing the criteria. The commission considered the comments during a public hearing — as well as many others, including from the EPA — and unanimously adopted the proposed criteria.
But because the commission did not meet the deadline established in the settlement, the EPA, rather than reviewing the criteria already adopted by the commission, has proposed its own more stringent criteria. The EPA’s criteria are based on a smaller set of data and literature, and will result in greater cost to Missourians with no associated environmental benefit.
Some will surely ask again: So what? The criteria are ultimately subject to EPA approval anyway; the litigation only changes the order of operation, not the final result.
In a world of unlimited resources, there would be no problem. If commission could develop nutrient criteria for lakes without putting other necessary regulation aside, there would be no harm to “sue-and-settle” litigation. But as the interest groups that practice it surely know, resources, including the commission’s, are finite. Tradeoffs are unavoidable. Through their litigation, the interest group and the EPA forced the commission to spend months developing nutrient criteria that it could have spent rewriting Missouri’s outdated rules, updating the data supporting its list of impaired waters, or reducing its backlog of permit applications.
Judges, with a single matter and only two parties before them, are poorly suited to regulate Missouri’s waterways with the correct priorities. Unelected interest groups have no legitimate claim to do so. “Sue and settle” disenfranchises Missouri voters and empowers interest groups and bureaucrats. Good riddance.
Ben Hurst is a member of the Missouri Clean Water Commission.
If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions here.
