‘Sue and settle’ an issue Congress needs to address
Aman walks in from the trial bar with a lawsuit in his hand. The person he gives it to doesn’t read it but instead agrees to the terms.
This version of the “man walks into a bar” trope is no joke. It’s essentially what happened repeatedly at the Environmental Protection Agency during the Obama administration.
The business community didn’t get the joke — it got the bill. The tab amounts to tens of billions of dollars in compliance costs.
A process dubbed “sue and settle” was standard practice in the Obama years — and not just at the EPA. Advocates sued a bureaucracy to force a change in regulation or enforcement. The agency settled instead of fighting. Such consensual litigation isn’t just costly but flies in the face of constitutional governance.
Scott Pruitt, who is President Trump’s EPA administrator, isn’t willing to raise a glass to the activists. This is another reason radical environmentalists don’t like Pruitt.
The judicial system is designed to be adversarial, not cordial. One side sues and the other fights back. A settlement may eventually be reached, but not before the process plays out. Under Obama, the EPA didn’t check IDs before serving up the drinks.
In a July meeting with The Oklahoman’s editorial board, Pruitt said the EPA “was truly governing and engaged in rule-making through litigation. They’d get sued by a third party, they’d walk into court, enter into a consent decree and take it to the rest of the country and say ‘Thou shalt do this,’ when it’s not in statute.”
Pruitt, the former Republican attorney general of Oklahoma, has a policy that makes the “sue and settle” process more difficult and transparent. Naturally, activist environmentalists are upset.
They were accustomed to acting like kids in the candy store, taking what they wanted. Unfortunately, kids also were running the bureaucracy. Adult supervision has been restored.
In an editorial last week, the Washington Examiner explained how the activists impose their will:
“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.”
The Examiner cited government estimates released by the American Action Forum that found 23 “economically significant” rules resulting from sue and settle that were imposed since 2005. The tab for this in compliance costs was $26.5 billion per year. The U.S. Chamber of Commerce identified 137 sue-and-settle cases justified by one law alone, the Clean Air Act.
Pruitt can only do so much, and he (or like-minded people) won’t always run the EPA. Thus, we agree with the Examiner that what Pruitt has done with policy decisions should be done by Congress through statute.
Pending legislation that has already passed in the U.S. House would crack down on sue and settle. The bar wouldn’t be closed, but it would be held to a higher standard.