When legislation was passed to improve visibility in national parks and wilderness areas, Congress directed the states to decide how to implement their visibility programs.
Instead, starting in 2009, the Environmental Protection Agency took control of many state visibility programs, costing states millions with no discernible visibility improvement.
And the states were not even told it was happening. It was authorized by a consent decree between EPA and an outside environmental advocacy group. The EPA claimed it had no choice but to follow the legally binding settlement and override state plans.
This practice, known as “sue and settle,” gives special-interest groups a legal mechanism to reprioritize and control agency rulemaking activities with little or no public participation.
How do special-interest groups take control of an agency’s rulemaking activities and circumvent congressional funding priorities?
An advocacy group sues an agency to enforce a missed deadline for action. Rather than defend against the lawsuit, the agency agrees to settle and take the action or issue the new rule demanded by the group, within a deadline set by the group.
Without any notice to the public, the settlement agreement and draft consent decree are filed with a court. Only then does it become public.
Once the court signs the draft consent decree, the agency is legally bound to comply with the settlement and pay legal fees.
In short, the federal agency agrees to do exactly what the group demands and to pay the interest group for demanding it.
As the advocacy group assumes control of the agency’s priorities, it also reorders congressional priorities.
Congress has placed many mandates on federal agencies. Congress also funds each agency’s activities. Each agency must balance meeting the deadlines imposed by Congress with its appropriated resources.
The EPA, for example, may be responsible for meeting 900 congressional deadlines over four years. In reality, the EPA has been able to meet only about 14 percent of its imposed deadlines over the past 20 years.
Therefore, 100 new rules the EPA issued pursuant to “sue and settle” agreements take immediate precedence over the remaining 800 mandates with deadlines.
For this reason, once an agency like the EPA decides not to defend against a deadline lawsuit and agrees to an advocacy group’s demands, the agency must abandon its efforts to balance the many congressional directives in favor of achieving the specific demands of the advocacy group that are mandated by the agency agreeing to the court order.
“Sue and settle” distorts policymaking. At a minimum, agencies agreeing to the tactic must make the process public.