Imagine the outcry if the nation woke up this morning to New York Times and Washington Post headlines reporting that in order to settle a lawsuit against Charles and David Koch, officials with the Environmental Protection Agency had met behind closed doors with them to iron out a deal that effectively allowed the brothers to rewrite regulations as they pleased. Imagine, also, that the EPA and the Kochs then got a federal court to issue a decree ratifying the deal and giving it the force of law? The sun would not likely set on a peaceful America until the EPA/Koch deal was utterly repudiated and those in government responsible for it frog-marched to jail after being charged with multiple violations of the Administrative Procedures Act.
So where were the outraged headlines for any of the 34 times since 2009 that the EPA did similar closed-door deals, but with the Sierra Club rather than the Kochs? Or the 20 times the agency accepted closed-door deals with another environmental activist group, the WildEarth Guardians? Why no headlines for the nine deals EPA accepted with the Natural Resources Defense Council, the six with the Center for Biologial Diversity or the five with the Environmental Defense Fund? In fact, none of the 71 closed-door deals EPA has accepted since 2009 with private parties involved in environmental advocacy and activism got front-page headlines.
All of these deals are unintended consequences of the "sue and settle" process included in major environmental laws adopted since 1970. Here's how the process works: 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.
That's how sue and settle works, so it's understandable that, as the U.S. Chamber of Commerce notes in a comprehensive new report on the process, "several environmental advocacy groups have made the Sue and Settle process a significant part of their legal strategy." It's also a significant funding tool for them because in most of the cases (65 percent, or 49 of the 71 cases involving the EPA) the suing group's legal fees are paid by taxpayers. (Incredibly, the Government Accountability Office found two years ago that it could not determine how much the government spent on such legal fees).
There are multiple reasons to repeal sue and settle but the two most important are its inherently anti-democratic character and the mockery it makes of transparency and accountability in government. Congress passed the Administrative Procedures Act in 1946 to ensure public participation in the rule-making process. In the decades since, there have been countless occasions in which public comments forced agencies to modify or withdraw deeply flawed regulatory proposals. But sue and settle cuts the public entirely out of the rule-making process. That must be changed and necessary reforms will be the focus tomorrow in this space.