For this week’s Primary Document Dump, we’ve chosen to highlight an ongoing “sue and settle” outrage that demonstrates everything insidious about this practice that has proliferated in the Obama Age.
Sue and settle refers to sweetheart lawsuits between EPA and environmental groups. The victims are States, which get left out of negotiations with a material impact on policy-making, despite the fact that they—the States—are EPA’s rightful partners (rather than green groups).
How Sue & Settle Works
In fact, the opportunity for such sue and settle shenanigans is created by the Congress’s overreliance on deadlines in environmental statutes. The Clean Air Act, in particular, contains far many more date-certain duties than the agency has proven capable of performing. Since 1993, of 200 date-certain duties pursuant to three core Clean Air Act programs, only 2% were completed on time, and the agency was, on average, late by almost 6 years.
Missed deadlines, per se, wouldn’t be problematic. However, they have become a policy problem because the Clean Air Act empowers environmental special interests to sue in order to compel the agency to perform any nondiscretionary duty. In the case of a “sue and settle,” an environmental group sues over a missed deadline, and, instead of litigating (and thereby defending its prerogative to set its own priorities), the agency immediately agrees to settle.
If the EPA is out of compliance with virtually all its Clean Air Act deadlines, as is demonstrated by the data above, then clearly the agency has limited resources relative to its responsibilities. As a result, establishing any deadline determines how the EPA deploys its limited resources, which is no different than rendering policy. Of course, if the EPA wants to give priority to its many outstanding responsibilities, it should do so in cooperation with the states, which have to actually implement these regulations, rather than the likes of environmental special interests like the Sierra Club and NRDC.
For more on sue and settle in general, see these studies:
- EPA’s Woeful Deadline Performance Raises Questions about Agency’s Competence, Climate Change Regulations, Sue and Settle, CEI
- Sue and Settle: Regulating Behind Closed Doors, U.S. Chamber of Commerce