Limited government advocates and property rights champions are cheering Environmental Protection Agency Administrator Scott Pruitt for publicly announcing he will scrap the tactic known as “sue and settle” for as long as he is in office.
“We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress,” Pruitt said in a statement.
So what is “sue and settle?” In short, it’s a way that politicians and bureaucrats shift policy by pretending to be in a legal fight with a political ally and altering a specific rule in order to supposedly avoid a lawsuit.
Patrick Hedger, manager of the Regulatory Action Center at the FreedomWorks Foundation, offers a more detailed description of how this political and legal charade plays out.
“(Government) agencies will sometimes collude with private actors, such as third party non-governmental organizations, non-profits, and other activist organizations in order to facilitate an expedited rule-making process that goes outside the normal rule-making,” said Hedger.
“There will be a faux lawsuit and instead of taking that suit to court, they will settle it out of court, generally behind closed doors, in a process known as a consent decree. That consent decree will force the agency to act in a way that’s normally a lot faster and more aggressive than a normal federal rule-making process,” said Hedger.
Hedger says this bureaucratic maneuver then provides political cover for an administration that wanted to change the rule all along.
“This is a way for agencies to avoid political accountability for controversial decisions. Usually, we’ve seen very expensive and aggressive regulations being passed, particularly environmental regulations. This is a way for agencies like the EPA, in the past, to say, ‘We had our hands tied by this lawsuit,’ even though this was their ultimate political goal,” said Hedger.
Hedger is quick to add that no party is innocent when it comes to using “sue and settle” but some administrations have utilized it much more than others.
“This has basically been a bipartisan practice but it accelerated greatly during the Obama administration,” said Hedger.
He also offered some examples of the more onerous rules established through “sue and settle,” including the Utility Maximum Achievable Control Technology rule.
“It basically forces power plants to put in expensive new infrastructure to achieve extremely stringent emissions standards. That’s estimated to cost almost $10 billion annually. There were Clean Water Act rules that applied to the Chesapeake Bay. Those are estimated to cost anywhere from $18-20 billion per year. All of these were achieved through ‘sue and settle’ litigation,” said Hedger.
Hedger is thrilled that Pruitt declared an end to a practice that subverts the normal rule-making process.
“This is a process that has been used by both Republican and Democratic administrations. This just shows that the Trump administration is very much still committed to getting back to regular order and the proper way of doing things.
“Instead of using this political end around to achieve its own goals, the Trump administration is just trying to bring the government back in line with the Constitution and the Administrative Procedures Act, which is supposed to govern regulations,” said Hedger.
Scrapping “sue and settle” is just one of several moves from Pruitt’s EPA that is drawing high praise from limit government activists. Earlier this month, Pruitt announced what many see as the beginning of the end of President Obama’s Clean Power Plan, which required substantial decreases in carbon emissions and was considered the death blow to the coal industry.
Earlier this year, Pruitt also started the rollback of the Waters of the United States rule, or WOTUS. That update changed the definition of navigable waterway from one you could actually navigate with a boat and was usually connected to a larger body of water to virtually and standing water in a drainage ditch or even a puddle.
Hedger likes Pruitt’s policies but likes his fidelity to his oath even more.
“I think Administrator Pruitt is doing a phenomenal job of, first and foremost, putting the Constitution first,” said Hedger. “There is a way to achieve a clean environment while also adhering to the rule of law and I think that’s the structure that we’re seeing from Pruitt’s EPA.”
But while Pruitt is making a lot of big moves, Hedger says the next EPA boss could easily reverse it all. He says lawmakers need to get involved.
“This does, at some level, have to fall back on Congress to stop passing these vague laws. Particularly in the case of ‘sue and settle,’ there are parts of the Clean Air Act and the Clean Water Act that encourage that encourage this type of practice. So Congress should go in and clarify that they never intended for this ‘sue and settle’ and consent decree practice to happen,” said Hedger.
Hedger says Pruitt’s moves on process and on existing rules are a breath of fresh air to property and business owners. However, he says much more can be done to relieve the regulatory burden on American families and businesses.
“Right now, there’s so much focus on tax reform, which is good, but if you look at the estimates of the economic burden of federal regulation versus the economic burden of taxes, they estimate that the regulatory burden in this country approaches two trillion dollars per year, which is more than is collected in individual and corporate income taxes,” said Hedger.