Congressional Republicans renew bid to halt sue-and-settle maneuvers

Feb. 5, 2015
Calling it an affront to regulatory accountability that results in unchecked compliance burdens, US Sen. Charles E. Grassley (R-Iowa) and US Rep. Doug Collins (R-Ga.) reintroduced bills to keep federal agencies from privately negotiating consent decrees or settlements of legal actions without including potentially affected parties.

Calling it an affront to regulatory accountability that results in unchecked compliance burdens, US Sen. Charles E. Grassley (R-Iowa) and US Rep. Doug Collins (R-Ga.) reintroduced bills to keep federal agencies from privately negotiating consent decrees or settlements of legal actions without including potentially affected parties.

The federal lawmakers introduced similar legislation to halt so-called “sue-and-settle” agreements in 2013, but it was not adopted. Their 2015 bills have 12 Senate and 9 House Republican cosponsors.

Congressional Republicans have said for years that environmental organizations and activists have abused the National Environmental Policy Act by suing a federal regulatory agency and subsequently offering to settle the action in court.

Cash-strapped regulators accept such offers to reduce legal costs, but can find themselves committed to an onerous, court-ordered schedule for implementing regulations. The practice has affected oil and gas activity overseen by the US Environmental Protection Agency, US Fish and Wildlife Service, and other federal agencies.

Business groups say sue-and-settle deals exclude their members who have to bear additional operating expenses as a result. The US Chamber of Commerce issued a report, “Sue and Settle: Regulating Behind Closed Doors,” on Feb. 4 that said EPA chose not to defend itself at least 60 times between 2009 and 2012 in lawsuits brought by special interest advocacy groups.

“Sue-and-settle litigation makes a mockery of the public accountability and transparency protections required by the Administrative Procedures Act,” Grassley said as he introduced his bill on Feb. 4. “It also limits the ability of the executive branch to engage in principled decision making.”

Collins said, “This bill would shed light on backroom deals between federal agencies and special interests—increasing transparency to provide the public its say in executive decision-making. This administration’s rush to settle with litigious outside groups is costing us jobs and income. We’re giving more people a voice in the outcome.”

Their 2015 bills include provisions which would:

• Require federal agencies to publicly post and report to Congress information on sue-and-settle complaints, consent decrees and settlement agreements.

• Prohibit the same-day filing of complaints and prenegotiated consent decrees and settlement agreements in cases seeking to compel agency action.

• Require that consent decrees and settlement agreements be filed only after interested parties have had the opportunity to intervene in the litigation and join settlement negotiations, and only after any proposed consent decree or settlement has been published for at least 60 days to provide for notice and comment.

• Require courts considering approval of consent decrees and settlement agreements to account for public comments and compliance with regulatory process statutes and executive orders.

• Make it easier for succeeding administrations to file motions for courts to modify a prior administration’s consent decrees by providing for de novo review of motions to modify if the circumstances have changed.

Contact Nick Snow at [email protected].