Using Settlements to Advance Regulatory Agenda

March 10, 2014

The Obama administration has used consent-decree settlements to advance its regulatory agenda, says Andrew Grossman, a visiting legal fellow at the Heritage Foundation.

Sue and settle -- a phenomenon in which federal agencies enter into settlements with environmental litigants that commit them to taking regulatory action -- is not a new tactic, but it is being used more and more frequently.  An outside group files suit against an agency, demanding that the agency take regulatory action. Rather than litigate the case, the agency enters into a settlement or a consent decree with the plaintiff, agreeing to issue new regulations.

  • The Environmental Protection Agency (EPA) entered into more than 60 of these settlements between 2009 and 2012, committing itself to publish more than 100 new regulations.
  • The tactic not only allows agencies to disclaim responsibility for unpopular actions, but these decrees are used to circumvent agency rulemaking procedures. Rulemaking is often accelerated, preventing the public from participating meaningfully in the regulatory process.
  • Settlements cover important policy questions (whether a regulation should be issued, what the timeline for that regulation should be, and what entities will be covered by the new rule), yet they take place behind closed doors without public input or scrutiny.
  • As an example of this, a group of environmentalist organizations filed suit against the Fish and Wildlife Service (FWS) in 2004, demanding that FWS provide a critical habitat designation for the Hine's emerald dragonfly. FWS settled, designating 12,221 acres in three states as a critical habitat for the dragonfly. That was not enough for the plaintiffs, who filed suit again, getting FWS to more than double the size of the habitat designation. On top of this, FWS paid the plaintiffs $30,000 in attorneys' fees.

How to solve this problem?

  • Grossman contends that the executive branch should not enter into consent decrees or settlements that compromise its power and discretion.
  • Congress can also adopt policies that improve transparency and accountability in these consent decrees. Proposed decrees should be required to go through the same rulemaking requirements that other regulatory proposals must follow.
  • Consent decrees should also require parties in support of the agreements to prove that they are in the public interest. Furthermore, Congress should make it such that the government can move to terminate or modify a consent decree if the decree is no longer appropriate due to changing circumstances, and a reviewing court should review that motion under the public interest standard.

Source: Andrew M. Grossman, "Regulation through Sham Litigation: The Sue and Settle Phenomenon," Heritage Foundation, February 25, 2014.

 

Browse more articles on Environment Issues