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Pro: 'Sue and Settle' bypasses democratic process

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William Kovacs
December 19, 2013

EDITOR'S NOTE: The writer is addressing the question, “Does EPA's sue-and-settle policy circumvent the legislative and regulatory process?”

WASHINGTON -- When legislation was passed to improve visibility in federal National Parks and Wilderness areas, Congress directed the states to decide how to implement their visibility programs.

Instead, starting in 2009, the Environmental Protection Agency took control of many state visibility programs, costing states millions of dollars with no discernible visibility improvement.

And the states were not even told it was happening. It was authorized by a Consent Decree between EPA and an outside environmental advocacy group. EPA claimed that it had no choice but to follow the legally binding settlement and override the states' plans.

This practice, known as “sue and settle,” gives special-interest groups a legal mechanism to reprioritize and control agency rulemaking activities with little or no public participation.

While this process has been used occasionally since at least the Carter administration, advocacy groups have turned “sue and settle” into a major policy tool to advance their agendas, inducing agencies to issue more than 100 key rules since 2009. These settlements all occurred without notifying or allowing key stakeholders—the public, the states, the regulated community or Congress—to participate.

How do special-interest groups take control of an agency's rulemaking activities and circumvent congressional funding priorities?

An advocacy group sues an agency to enforce a missed statutory deadline for agency action. Rather than defend against the lawsuit, the agency simply agrees to settle and take the action or issue the new rule demanded by the group, within a deadline set by the group.

Without any notice to the public, the settlement agreement and draft Consent Decree are filed with a court. Only after the Consent Decree is filed does it become public.

Once the court signs the draft Consent Decree, the agency is legally bound to comply with the settlement agreement and pay attorneys' fees.

In addition, its future actions remain under the court's jurisdiction, including being liable for contempt should it not comply with the order.

In short, the federal agency agrees to do exactly what the group demands and to pay the interest group for demanding it.

As the advocacy group assumes control of the agency's priorities, it also reorders congressional priorities.

Congress has placed many mandates on federal agencies. Congress also funds each agency's activities. Each agency must balance meeting the deadlines imposed by Congress with its appropriated resources.

EPA, for example, may be responsible for meeting 900 congressional deadlines over a four-year period. In reality, however, EPA has only been able to meet about 14 percent of its congressionally imposed deadlines over the past 20 years.

Therefore, 100 new rules EPA issued pursuant to “sue and settle” agreements take immediate precedence over the remaining 800 mandates with deadlines.

For this reason, once an agency like EPA decides not to defend against a deadline lawsuit and agrees to an advocacy group's demands, the agency must abandon its efforts to balance the many congressional directives in favor of achieving the specific demands of the advocacy group that are mandated by the agency agreeing to the court order.

“Sue and settle” allows a special interest group to take control of the priorities of the agency by refocusing its workload.

What's more insidious is that once the agency is under the Consent Decree, future administrations are bound by it. That means the agency not only loses its own discretion and disregards congressional priorities, but it deprives future presidents of the ability to change the agency's policy.

“Sue and settle” is a process that distorts policymaking. At a minimum, agencies agreeing to the tactic must make the process public so citizens know how policy is truly being made.

William Kovacs is senior vice president for the environment, technology and regulatory affairs at the U.S. Chamber of Commerce. Readers may write to him at U.S. Chamber of Commerce, 1615 H Street NW, Washington D.C. 20062.



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