July 19, 2011 at 8:01 am by William O’Keefe
Last week, the House Energy and Commerce Committee held a hearing on how the U.S. Environmental Protection Agency regularly avoids the public comment process on potentially controversial and excessively expensive regulations. The technique is known as “sue and settle.”
Environmental laws contain citizen suit provisions which are intended to provide recourse by affected parties—states, for example—in cases of non-compliance. But for years, environmental groups have used these provisions in collaboration with a friendly EPA to achieve ends that would be difficult to achieve through the normal rulemaking process.
In an Investor’s Business Daily article earlier this month, reporter John Merline noted:
The EPA even tacitly encourages such suits, going so far as to pay for and promote a “Citizen’s Guide” that, among other things, explains how to sue the agency under “citizen suit” provisions in environmental laws. The guide’s author — the Environmental Law Institute — has received $9.9 million in EPA grants over the past decade.
And, to top it off, critics say the EPA often ends up paying the groups’ legal fees under the Equal Access to Justice Act.
Under the Administrative Procedures Act, an agency like EPA that wants to change or issue a regulation makes a proposal, solicits public comments, theoretically revises the proposal based on those comments, and then publishes the final regulation in the Federal Register. The entire process is intended to be open and transparent.
The “sue and settle” tactic circumvents the process.
An environmental organization can start off in court by claiming that the agency has failed to meet a deadline or has not satisfied some regulatory requirement. The agency then has two choices. It can either challenge the legal action or enter into settlement negotiations.
In the case of an environmentally biased EPA (as opposed to a neutral one), the agency and environmental group reach, what is usually a one-sided agreement and sign a consent decree that is usually accepted by the court.
The tactic offers regulators political cover against public outcry, since they can simply throw their hands up and say “the courts made us do it.” And once the judicial system approves a settlement, getting it overturned is extremely difficult.
According to U.S. Chamber of Commerce Senior Vice President William Kovacs’ testimony [pdf], EPA has increasingly employed this tactic—at least 16 times in recent years—to institute controversial rules impacting utilities, refineries, and gas drilling regulations.
Moreover, Investor’s Business Daily’s investigation shows just a handful of major environmental outfits that were responsible for more than 3,000 suits against EPA and other government agencies received tens of millions in tax dollars from it over the past decade.
Our regulatory system is out of balance and not getting better. Some fundamental changes are needed. One that could help provide better balance would involve Congressional review and approval of any regulatory proposal or settlement agreement that had a cost exceeding $100 million.