NCPA - National Center for Policy Analysis

Sue and Settle Disrupts U.S. Checks and Balances

July 26, 2013

In a process known as sue-and-settle, activists sue government agencies such as the Environmental Protection Agency (EPA), negotiate settlements with friendly bureaucrats, and obtain judicial decrees that have the force of law. This process twists laws and creates disruptive regulations while largely avoiding the scrutiny of Congress and the public, says the Capital Research Center.

These corrupt bargains undermine the democratic process and empower the likes of the Sierra Club (whose executive director has called for leaving more than two-thirds of the world's oil, coal and gas resources in the ground) and the Center for Biological Diversity (whose leader opposes all commercial use of public lands).

Sue-and-settle has resulted in numerous regulations being passed without congressional approval:

  • The federal government has effectively banned new coal-fired power plants and is in the process of shutting down old ones.
  • "Endangered species" that are neither endangered nor species are used by the federal government as tools to shut down the development of our country's natural resources and, incidentally, destroy jobs.
  • Environmentalists may block one of the most positive developments in years, the prospect of North American energy independence due to "fracking" (hydraulic fracturing) and new horizontal drilling technology.

Environ­mentalists file lawsuits against govern­ment entities such as the EPA or the Fish and Wild­life Service, and then meet behind closed doors with officials of those agencies to work out settlements of those lawsuits. These settlements almost invariably "force" EPA officials to take actions they wanted to take in the first place. Some­times the settlements actually increase the power of the bureaucrats themselves or their political-appointee bosses.

The settlements become consent de­crees, approved by judges, and bind the government. Judges usually rub­berstamp the agreements because both parties are in agreement and, seemingly, no controversy remains. All this is done without meeting any normal require­ments for public notice and with no chance for anyone to comment or intervene.

Source: CRS Staff, "'Sue and Settle': Secret Backroom Deals by Bureaucrats and Environmentalists Hurt the American Economy," Capital Research Center, July 5, 2013.


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