The Obama Administration skyrocketed a previously little-used method of implementing regulations by agencies like the EPA. A bill that just passed the House, the Sunshine for Regulations and Regulatory Decrees and Settlements Act, would end the practice.
Executive branch agencies such as the EPA had, during the Obama Administration, increasingly used a tactic derisively nicknamed by opponents as “sue and settle.”
Under this approach, a (usually pre-arranged) supportive individual or organization, such as a progressive activist group, will sue an agency like the EPA, rather than the agency being sued by an opponent as usually occurs. Then the agency will settle out-of-court by agreeing to implement a new regulation or order, which is what the agency and the suing party both wanted all along.
As Andrew Grossman of the conservative Heritage Foundation wrote, “Regulators are only too happy to face collusive lawsuits by friendly ‘foes’ that are aimed at compelling government action that would otherwise be difficult or impossible to achieve.”
Under the Obama Administration, more than 100 regulations were implemented under this method, at an estimated annual cost of at least tens of billions of dollars, and possibly more than $100 billion.
What the bill does
- Require agencies publicly post information on such “sue-and-settle” cases and settlements reached.
- Ban the initial lawsuits and the settlements from being issued the same day. All settlements will now have to face a 60-day waiting period.
- Make it easier for subsequent presidential administrations to potentially reverse a previous administration’s agency decision or regulation they disagree with
That last element would be achieved by allowing an administration to ask a court for a so-called de novo judicial review of a regulation, a legal move in which all issues are reviewed as if for the first time. In other words, if a previous court upheld a regulation — as many Democratic-appointed courts often did for Obama-era regulations — that precedent would be given no weight.
What supporters say
Supporters argue the bill will return a to a pre-existing normalcy and prevent end-runs by executive branch agencies attempting to establish regulations.
The bill will “draw back the curtain on federal agencies that have colluded with special interest groups at the expense of American workers and families,” House lead sponsor Rep. Doug Collins (R-GA9) said in a press release.
“The back-room litigation that the EPA, Fish and Wildlife Service and other agencies favored throughout the last administration must come to an end,” Collins continued. “A government by and for the people has no business allowing unelected bureaucrats to redraft laws behind closed doors.”
What opponents say
Opponents say that supporters mischaracterize the “sue-and-settle” method, and that the new policy, if such a law were to pass, would give increased heft to businesses and their concerns.
A group of 57 former attorneys for the EPA recently sent a letter to EPA Administrator Scott Pruitt after he attempted to rein in the agency’s use of “sue-and-settle.” They contend that it’s actually illegal to use such a lawsuit to achieve a particular end result in mind, despite what conservatives contend. They also say there’s many cases where settlements are appropriate, and that such a decision would limit that often-necessary option.
No Republicans opposed, and two Democrats supported: Reps. Henry Cuellar (D-TX28) and Collin Peterson (D-MN7).
The legislation now goes to the Senate, where it has attracted 10 Republican cosponsors. It awaits a vote, although previous versions introduced in the Senate in 2015, 2013, and 2012 never received a vote.