In a recent post on the Ohio impaired waters listing issues, we thought about the possibly increasing power that interest groups might be gaining when it comes to environmental issues. Whatever power they may have been gaining, however, recently took a significant hit when the EPA issued an order to end “Sue and Settle” litigation practices (https://www.epa.gov/newsreleases/administrator-pruitt-issues-directive-end-epa-sue-settle). In short, “sue and settle” refers to the process by which interest groups can sue the EPA to pressure the agency into writing, revising, or enforcing a certain environmental regulation. In order to get out of the lawsuit, EPA would often have to add another link to the environmental regulatory chain. These suits often lead to settlement agreements to create rules outside of the normal rule-making process without participation from any of the normal parties (https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwjD2ZT1k-DYAhXi64MKHQ7yDqEQFggyMAI&url=https%3A%2F%2Fwww.uschamber.com%2Freport%2Fsue-and-settle-regulating-behind-closed-doors&usg=AOvVaw1wBT5wEy096d3ZCg7cl56g).
Proponents of “Sue and Settle” practices say that getting rid of such practices misrepresents traditional settlement practices and limits the public’s ability to be involved the rule-making process. (http://thehill.com/policy/energy-environment/360164-former-epa-attorneys-slam-sue-and-settle-policy). This is an interesting argument, since the very existence of “Sue and Settle” is the antithesis of how public involvement in rule-making is supposed to look. They also argue that “Sue and Settle” practices are not catering to certain interest groups but are rather just expediting the agreement process for future rule-making.
Does this order really change anything, though? Some have argued that the order will make the problem worse. Lawsuits against the EPA are either procedural (trying to get EPA to carry out its responsibilities) or substantive (trying to challenge an EPA decision), and sue-and-settle practices fall into the procedural category. This means that they can be resolved by either (1) a court order forcing EPA to act or (2) a settlement agreement process that usually leads to litigation. Neither of these options grant EPA any more authority than it already had, so the argument goes that if EPA’s reach isn’t necessarily being expanded, we don’t have to worry about sue-and-settle practices circumventing the law (https://niskanencenter.org/blog/sue-settle-directive-epa-nonsense/). However, I would argue that there is something much more deeply concerning about “Sue and Settle” practices than just the reach of the EPA.
To begin with, administrative agencies may not be constitutional at all. The Supreme Court’s original position on them, as demonstrated in the case of Schechter Poultry v. United States, was that legislative functions cannot be delegated to unelected administrative agencies. The Court noted that it was dangerous for any one entity to have all three powers – legislative, judicial, and executive. However, the current position is far from that. In fact, the Court now not only sanctions the existence of administrative agencies but defers to their opinion as long as it is generally “reasonable” (whatever that means). It is ironic that today’s agencies do indeed have all three of these powers, especially given that our Constitution is rooted in the concept of “separation of powers.” I wonder if the Supreme Court remembers King George III of England, whose possession of all three powers was the very reason that American independence became so valued in the first place.
With this background, we can now look at the dangers inherent in “Sue and Settle” practices. I would argue that “Sue and Settle” practices subvert something that is very uniquely American – our process. Our process is something the world has never seen before, and history has shown us that (for the most part) it works pretty darn well. This process involves the hard, tedious work of legislation; it involves the vigorous and spirited challenge of public debate that Aristotle so eloquently promoted; it involves the willingness to face other opinions and accept the fact that they don’t agree with you; and it involves the patient and conscientious commitment of every citizen. This process is not quick or easy, but in our age of instant communication we have begun to want faster answers. We aren’t willing to debate like we once were (for example, Abraham Lincoln versus Stephen Douglas, a legendary story our country is still proud to tell), and we need to have easy solutions right now. We are always looking for ways to find fast answers by fast means, and suing a (pseudo?) constitutional agency in order to pressure them into acting before they lose a lot of money is a heck of a lot easier than engaging in the public debate and legislative effort that is the foundation of our uniquely American process. This is why “Sue and Settle” practices are so worrisome – because they are yet another chink in the structural armor of our constitutional republic, and it is only a matter of time before the cumulative effects of their existence cause it to become dangerously rusted.
The actual process looks like this: First, the agency must submit a notice of proposed rule-making in the Federal Register that includes dates and times of any public proceedings and a reference to the relevant legal authority. Second, there must be a time for written public comment. Third and finally, the agency can publish the rule after taking into account all of the public comments. “Sue and Settle” practices remove the first two steps and replace them with one step: interest groups sue the agency and force them to adopt a new interpretation of the law. Most of these suits are “failure to act” suits, in which the interest group is (to use the example of Massachusetts v. EPA) claiming that the EPA failed to regulate new motor vehicle emissions. However, this is just a guise for what they are really doing, which is forcing an ultimatum upon the agency to lose a lot of money or adopt a new interpretation (specifically, that interest group’s interpretation) of what the agency’s duty is.
Proponents of “Sue and Settle” practices also forget that energy companies and other large industries not only make their emissions information public but are operating with authorization from the federal government, which includes the EPA. Suing and settling is thus forcing the EPA to disapprove of activity that is has already either explicitly or implicitly sanctioned (https://www.dallasnews.com/opinion/commentary/2018/04/02/lawsuits-poor-way-address-climate-change?utm_source=Digest&utm_campaign=7374920269-EMAIL_CAMPAIGN_2018_04_09&utm_medium=email&utm_term=0_b57b3ffb8c-7374920269-520782809).
Finally, lawsuits are simply a bad way to address environmental issues. Like the fatally flawed decision from Massachusetts v. EPA, local lawsuits simply cannot adequately address the often global scope of many of today’s environmental issues.
In short, “Sue and Settle” practices were never supposed to be the norm, and we should be glad that they are now in a less favored position. They short-circuit the Administrative Procedures Act (the act that establishes rule-making procedures for the federal government), they nullify the legitimacy of the legislative branch, they rush the rule-making process, they make it impossible for legislators to consider better alternatives, and they evade Congressional and public accountability. The Executive branch should be more assertive in making sure these settlements do not compromise its discretion, and Congress should be more active in providing transparency and accountability.