Three Cheers for Ending Sue and Settle and Goodbye Bre’r Rabbit

EPA Administrator Pruitt’s decision to end “sue and settle” is a step in restoring the rule of law at EPA. And as expected, environmental groups howled in protest, and with good reason.

For too many years, democrat administrators have taken settlement agreements, which can be a good resolution, a step too far by agreeing to terms that imposed regulatory burdens outside of the rule making process.

Several years ago, the Washington Examiner ran an article describing how sue and settle had become a “cottage industry”. It described it this way “First, the private environmental group sues the EPA in federal court seeking to force it to issue new regulations by a date certain. Then agency and group officials meet behind closed doors to hammer out a deal. Typically in the deal, the government agrees to do whatever the activists want. The last step occurs when the judge issues a consent decree that makes the deal the law of the land. No messy congressional hearings. No public comment period. No opportunity for anybody outside the privileged few to know how government regulatory policy is being shaped until it’s too late.” And, too add insult to injury, the government would have to pay the plaintiffs legal fees which in turn are used to sue the government to achieve more settlements. According to a GAO study, between 1998 and 2010, the government shelled out $16million in tax payer dollars.

Sue and settle provides a way for environmental groups to short circuit the Administrative Practices Act which lays out a required process that allows all interested and affected parties to participate in the rule making process. Regulations that flow from this process are supposed to be based on existing law and an objective review of all comments on a proposed regulation. As the Examiner piece and others have documented, the process doesn’t work this way with sue and settle.

To make matters worse, many regulatory analysts have pointed to instances where there was apparent collusion between EPA and environmental organizations on potential litigation by agreeing on the terms of a settlement agreement. This became a classic example of using a piece of fiction, Uncle Remus, to do what Bre’r Rabbit did—get authority figures to act against what should be their own best interests, which is the public interest.
Now Bre’r Rabbit will be retired if the Administrator’s action is followed up by passage of the Sunshine for Regulatory Decrees and Settlements Act of 2017.

 

 

Author: billo38@icloud.com

Founder and president of Solutions Consulting which focuses on public policy issues, strategic planning, and strategic communications.

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