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.