A Dozen States File Suits for Documents Related to EPA’s “Sue and Settle” Tactic

Twelve attorneys general last week filed a lawsuit in federal court requesting for access to documents related to the Environmental Protection Agency's (EPA's) so-called "sue and settle" practice with advocacy groups.

The 12 states (Alabama, Arizona, Georgia, Kansas, Michigan, Nebraska, North Dakota, South Carolina, Texas, Utah, and Wyoming) led by Oklahoma allege in their complaint filed in the Western District of Oklahoma that the EPA employs the tactic as a way to settle lawsuits with environmental organizations, including Greenpeace, Defenders of Wildlife, WildEarth Guardians, and the Sierra Club, without allowing state involvement.

Under the "sue and settle" process, advocacy groups sue the EPA to issue a regulation, and during closed-door settlement discussions, the groups and the EPA agree to a timeline and the content of a new rule. Industry groups have argued that after an agreement has been reached, the EPA rarely modifies terms of the settlement agreement during the notice and comment period. "In some instances, the EPA entered a consent decree the same day a lawsuit was filed by the special interest group, suggesting prior knowledge," the states said in a joint press release.

"Out of the 45 settlements made public, the EPA has paid nearly $1 million in attorneys’ fees to the environmental groups, while also committing to develop sweeping new regulations. One EPA consent decree led to the EPA’s costliest regulation ever—the Mercury Air Toxics Standards (MATS)," they said.

The 12 states said they filed a Freedom of Information Act (FOIA) request in February seeking information between EPA officials and special interest groups concerning consent decrees that dictate how the EPA is to implement the Clean Air Act’s Regional Haze program in various states. The states also requested a fee waiver. “Ninety-two percent of the time EPA grants fee waiver requests from noncommercial requesters who are supportive of EPA’s policies and agendas, but denies a majority of fee waiver requests from noncommercial requesters who are critical of EPA,” the complaint states. “States properly asked for specific records ... (and) EPA violated FOIA’s mandate.”

As law firm Bracewell & Giuliani points out , the Ninth Circuit this April haltered the "sue and settle" practice when it overturned a consent decree that the U.S. Forest Service, Bureau of Land Management, and U.S. Fish & Wildlife Service entered into with various advocacy groups. The court held that "a district court abuses its discretion when it enters into a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures."

On July 9, responding to a request made by Sen. David Vitter (R-La.), Acting EPA Administrator Bob Perciasepe said in a letter that the agency had committed to establish a website to post petitions for rulemaking received by the agency. That website is now live and tracks petitions received by the EPA starting at the beginning of this year. The EPA also created a new webpage that provides copies of notices of intent to sue the agency for failure to perform an act or duty required under statute.

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Calif., Texas Tie for States with Most Smart Grid Progress

California and Texas equally show the most progress in modernizing their electric systems with smart grid technologies compared to other U.S. states, a new evaluation of the nation's grid modernization efforts shows.

The first Grid Modernization Index (GMI) released by the GridWise Alliance and the Smart Grid Policy Center on Monday applies a ranking system, or "scorecard," that uses a set of criteria to evaluate the progress of state grid modernization efforts in three key areas. These gauge how well state policies and regulatory mechanisms facilitate grid investment, how much has been invested in customer–enabling technologies and capabilities, and how much has been invested in grid-enhancement technologies and capabilities.

Of data gathered for 41 states, California and Texas tied for the highest overall score, followed by Maryland, Delaware, and Pennsylvania. Arizona, the District of Columbia, Ohio, Nevada, Illinois, Florida, Virginia, Oklahoma, Vermont, and Maine also ranked among the top 15 states.

Among the GMI's key observations is that states showing more grid modernization progress have retail choice, belong to Regional Transmission Organizations (RTOs) or Independent System Operators (ISOs), and/or have Renewable Portfolio Standards. These factors indicate "a relationship exists between these federal and state policies and greater investment in grid modernization," the GMI says.

Meanwhile, the analysis shows a high positive and statistically significant correlation between states that received American Recovery and Reinvestment Act (ARRA) Smart Grid Investment Grants and the scoring across all three components. But no correlation was found between electricity end-use prices in any customer segment and the GMI scores, indicating that the price of electricity is not a primary driver for grid modernization. States that scored higher overall also showed higher scores in addressing cybersecurity and data privacy than other states, and had higher scores in engaging and educating customers.

States that scored higher overall have also deployed more sensors and advanced modeling tools for both transmission and distribution grids, the GMI finds. And, the 15 highest-scoring states have all deployed smart meters to their residential and small commercial customers to some extent. Ten of these 15 states have installed smart meters for at least 60% of their consumers. The survey also found, significantly, that "most states are lagging in the areas of establishing metrics, measuring the value of grid investments, and in determining appropriate cost recovery mechanisms."

The 24-page report notes that state and federal energy policies are necessary for the U.S. to achieve "grid modernization," a term often used interchangeably with "smart grid." A change in “structure and mindset that will see utilities shift from commodity-oriented toward service-oriented entities” will also be vital, as will be customer engagement, it says.

Sources: POWERnews, GridWise Alliance, Smart Grid Policy Center

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