Source: POLITICO'S MORNING AGRICULTURE, 11/3/17

Since EPA chief Scott Pruitt decided to end "sue and settle" - a practice used a lot during the Obama administration to resolve litigation over rule-making delays by agreeing to specific timelines to act - lawyers in the food and agriculture industry are raising concerns about the impact on their cases at EPA and other agencies. Pruitt's recently issued directive requires the agency to consult industry groups before settling. It also encourages the EPA to avoid paying the legal fees of environmental groups. 

Food and agriculture lawyers say cases now may never be resolved: George Kimbrell, legal director at the Center for Food Safety, who successfully sued FDA on following deadlines to implement the Food Safety Modernization Act, fears that case never would have never completed under EPA's new rules. "I don't know how that settlement would have played out or if it could have played out at all," said Kimbrell. "We still wouldn't have those rules without that case."

This directive could extend to other agencies: Peter Lehner, senior attorney at Earth Justice (who helped sue the FDA over its delays in implementing menu labeling), has been worried that other agencies may embrace what the EPA is doing. "I assume the White House has some role or coordination," Lehner said. "If they think something is good at one agency, they may want to follow suit at another agency."

These were already very restrictive cases: Lehner added that groups already had very little latitude to sue. "What they seem not to understand when they talk about "sue and settle" is that our cases can only be brought to enforce the law," Lehner said. "So our cases against the agency are pretty much all saying that the agency did not do what Congress told them to do."

This could create more work for the legal system: Kimbrell noted that courts had already done a good job of throwing out frivolous cases. But refusing settlements and seeing out more industry advice could delay these cases even more. "It's the courts that determine what is necessary or not necessary by applying the laws," Kimbrell said.