Politics

Republicans aim to bring transparency to ‘sue and settle’ lawsuits

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Michael Bastasch Contributor
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Republicans in the House and Senate are introducing legislation to bring transparency to the controversial practice of using the legal system to advance regulation, known as “sue and settle.”

Iowa Sen. Chuck Grassley and Georgia Rep. Doug Collins have teamed up to bring more transparency to what they describe as “sue and settle” lawsuits, while also preserving the rights of individuals and groups to bring suits against government agencies.

“We’re looking at greater transparency here,” Collins told reporters on Friday, adding that his bill’s aim is to bring back the constitutional balance of power that he says has been subverted by these lawsuits.

The Environmental Protection Agency has reaped the heaviest criticisms for quickly settling with environmental groups who sue to force the agency to impose more and stricter environmental regulations.

Citizens and outside groups can sue the EPA when it misses a deadline established by law. However, the complexity of environmental regulations means the agency’s deadlines are difficult to meet, which leaves them vulnerable to suits by activist groups.

“This process allows ‘citizens groups’ and politicized state attorneys general to set EPA’s priorities in the face of its ever-expanding duties and its ever-dwindling resources,” said Richard Stoll, an attorney with Foley & Lardner LLP who practices environmental law.

The EPA has increasingly been settling lawsuits brought by environmental groups and creating new regulations by court order. Over the last few years, hundreds of EPA rules have been issued under court-ordered deadlines, according to Stoll.

There are concerns that “sue and settle” allows for the EPA and environmental groups to collude and craft more extensive environmental regulations while locking out businesses and U.S. states affected by the new rules.

States have recently pushed back against a new EPA emissions rule created in response to a “sue and settle” lawsuit with the Sierra Club, an environmental group.

“Oddly, it appears that, instead of defending EPA’s own regulations and the SSM provisions in the EPA-approved air programs of 39 states, EPA simply agreed to include an obligation to respond to the petition in the settlement of an entirely separate lawsuit,” wrote Louisiana Republican Sen. David Vitter and Alabama Republican Sen. Jeff Sessions in a letter to the EPA over the agency’s new emissions rule. “In other words, EPA went out of its way to resolve the SSM petition in a coordinated settlement with Sierra Club.”

Collins told reporters that he was not accusing environmentalists or the EPA of collusion, but instead wants to open up the “sue and settle” process.

For example, under the proposed legislation, federal agencies would be required to publish and report to Congress all notices of intent to sue, complaints, decrees, settlements, and whether attorneys’ fees are awarded. Furthermore, agencies would be prevented from proposing consent decrees and settlements to the courts until they are published and all parties affected by the new regulations, including businesses and states, have a chance to weigh in.

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