You may recall from civics class that our Federal Government has three separate branches: executive, legislative and judicial. Your teachers probably never included the Sierra Club on that list. Thanks to the practice known as “sue and settle,” however, special interest groups like the Sierra Club may have more influence on our country’s laws than the legislative branch. Of course, this isn’t the way things should be.
What makes “sue and settle” so problematic? Let’s go back to that civics class. To put a policy idea into law, Congress has to pass and the President has to sign a bill. Over the years, Congress has also delegated expansive regulatory powers to the executive branch, but regulations must go through a process, including notices and comment periods allowing for public input, before they become final. People, businesses and groups can weigh in on how the proposed rule would affect them. These steps promote deliberation and transparency.
In contrast, “sue and settle” closes the doors and shuts the blinds, allowing bureaucrats and special interests to get the result they want. They do this without getting input from elected legislators, other interested parties and the general public. Here’s how it works: a particular interest group sues a government agency friendly to its cause. The “friendly” government bureaucrats then go to court and report they’ve reached a settlement on the suit. The court approves the “settlement,” while the “settlement order” is usually spread on the public record. The process is often done in camera, in other words, in the judge’s chambers with the special interest group, the friendly bureaucrats and the judge. The “settlement agreement” often requires the agency to take a particular action, frequently on a timetable beneficial to the special interest. To add insult to injury, the agency often pays attorneys’ fees to the group bringing the lawsuit. Taxpayer dollars subsidize lawsuits that create rules taxpayers and their elected representatives don’t get to influence or object to.
The practice of “sue and settle” was popular with the Obama Administration. The Environmental Protection Agency (EPA) in particular relied on the tactic, with 137 “sue-and-settle” cases involving the Clean Air Act alone between 2009 and 2017, as opposed to 66 such cases during the Bush Administration. Many of the agreements committed EPA to rules that Congress did not support. Congress did not pass cap-and-trade legislation, but a “sue-and-settle” agreement committed the EPA to releasing a rule that would have achieved the same ends. The result was the Clean Power Plan put forward by the Obama Administration but recently revoked by the Trump Administration.
So, it was welcome news when on October 16, EPA Administrator Scott Pruitt issued a directive to end “sue and settle,” declaring, “The days of regulation through litigation are over.”
Of course, the Sierra Club blasted the decision, and why shouldn’t it? As long as “sue and settle” was employed, it could bypass Congress and avoid scrutiny by the general public. From 2009 to 2012, it was involved in 34 sue-and-settle cases. Without being elected by anyone, or having to contend with others holding different views, it was able to call the shots with the cooperation of likeminded bureaucrats. “Sue and settle” was a great deal for the Sierra Club and other special interests. It was a bad deal for average Americans.
The EPA was not the only agency to use this tactic. The Departments of Agriculture, Commerce, and the Interior employed it as well.
I applaud Administrator Pruitt’s actions at the EPA and hope other agencies follow suit. However, the last eight years showed that “sue and settle” is too tempting a power for bureaucrats to possess. Stronger protections are needed. The House of Representatives will soon take up H.R. 469, the Sunshine for Regulations and Regulatory Decrees and Settlements Act. Among its provisions, it would require more transparency for lawsuits and give parties affected by any agreement the chance to participate. I am in favor of this approach.
Sue and settle is an affront to representative government. I am hopeful that its days are permanently numbered.
If you have questions, concerns, or comments, feel free to contact my office. You can call my Abingdon office at 276-525-1405 or my Christiansburg office at 540-381-5671. To reach my office via email, please visit my website at www.morgangriffith.house.gov. Also on my website is the latest material from my office, including information on votes recently taken on the floor of the House of Representatives.