It’s a common love story in Washington. An advocacy group sues a federal agency, such as the EPA, alleging that it is failing to enforce a law strictly enough. The lawsuit comes as no surprise to the bureaucrats at the EPA, who not only know about the suit in advance, but welcome it as an opportunity to flex their muscles.
Both parties consent to this arrangement – or in other words, the adversarial judicial process is a sham. The private plaintiff and the public agency, hand in hand, quickly come to a settlement agreement that both of them love – one that imposes new rules and new burdens on the public, only without having to go through the messy and transparent rulemaking process set forth in the Administrative Procedure Act.
Unfortunately, this is how all too many regulations are made – not based on science or laws passed by Congress, but through a “sue and settle” process that creates regulations behind closed doors, bypassing administrative law and defeating transparency. In the case of environmental law, the vast majority of these cases that settle are brought by the same small handful of left-wing activist groups.
This is how radical environmentalists have colluded with EPA bureaucrats – especially in the Obama era – to impose regulations that Congress had never authorized. Based on government estimates, the American Action forum found 23 “economically significant” rules created through this dubious process since 2005, which combined are costing businesses $26.5 billion per year in compliance costs. But those are just the big ones. The Chamber of Commerce has identified 137 sue-and-settle cases during the Obama era under just one law, the Clean Air Act, which appears to be an all-time record.
EPA administrator Scott Pruitt wisely imposed requirements earlier this month that will make this “sue and settle” procedure impossible for the bureaucracy to conceal, and much harder for environmental radicals to pull off. As he put it, “the days of regulation through litigation are over.” Pruitt’s directive simply requires full transparency when the EPA is sued, and a public comment period when it is pressured to enter into such a consent decree, so that the affected states and industries, among others, have a chance for input, just as they would with any other rulemaking.
The EPA bureaucrats’ incentive, after all, is to settle instantly, because this usually means increasing their own power to regulate at no cost. Transparency and a cooling off period makes such judicially-abetted power grabs more difficult.
As smart as Pruitt’s decision is, Congress would be even smarter to make it permanent by passing a statute to this effect. The House took a first step last week by passing the Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2017. The bill goes far beyond just the EPA, requiring transparency for all all lawsuits against government agencies that try to compel them to take an official action. Courts would be required at least to consider letting outside legal counsel intervene as friends of the court. And importantly, any agency attempting to use a consent decree as an excuse to change or make a rule would have to open up the question to a 60-day comment period and show all the work it had done in developing the proposed rule.
In other words, no more quickie settlements that just agree to whatever the environmentalists demand. No more public regulations based on private agreements.
In the end, this is just a basic principle of fairness, transparency, and the rule of law. No matter who is president, it is not fair to the taxpayer or to those subject to regulation that their adversaries should sit on both sides of a private, secretive negotiating table when major decisions are made about their future.