GOP bill to curb ‘sue and settle’ moves forward

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Michael Bastasch DCNF Managing Editor
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A bill intended to bring more transparency into lawsuits brought against federal regulators by outside interest groups has advanced in the House.

The House Judiciary Committee moved a step closer to curbing the controversial practice known as “sue and settle” with a 17 to 12 vote Wednesday, and lawmakers are going to keep pushing the issue.

The bill comes after months of intense criticism of groups bringing suit against federal agencies that miss regulatory deadlines to force them to engage in rulemaking.

Republicans have mainly targeted agencies like the Environmental Protection Agency, which has entered into many consent decrees with environmental groups that force the agency to implement more stringent regulations.

“By reforming our nation’s regulatory system through this legislation, we can jumpstart the engine of our economy,” said Georgia Republican Rep. Doug Collins, who introduced the bill. “Increasing transparency in consent decrees and settlements improves access and encourages public participation.”

Critics of “sue and settle” argue that it’s a way for the EPA to collude with environmentalists and get political cover for pushing strict environmental regulations. Republicans also complain that the practice keeps businesses impacted by the regulations from having any input in the rulemaking process.

Collins’s bill would require agencies to disclose information about lawsuit and be subject to more oversight. For example, agencies would have to publish and report to Congress notices of intent to sue, complaints, decrees, settlements and attorneys’ fee awarded to plaintiffs. Also, agencies would not be allowed to enter into consent decrees with outside groups until affected parties have had their say.

Iowa Republican Sen. Chuck Grassley introduced a companion bill in the Senate.

“This kind of regulatory litigation also adversely affects the ability of the executive branch to engage in sound and principled decision-making,” Grassley said in a statement.”

Sue and settle has been particularly controversial for the EPA. Over the last few years, hundreds of EPA rules have been issued under court-ordered deadlines, wrote Richard Stoll, an environmental attorney with Foley & Lardner LLP.

In June 21 states wrote to the EPA, urging them to avoid sue and settle lawsuits to force new carbon dioxide emissions regulations onto power plants, which would harm the coal industry and raise energy costs.

These states sent the letter as a coalition of environmental groups and ten states threatened to sue the EPA for missing a deadline to issue carbon dioxide limits for power plants. However, the Obama administration’s new plan to tackle global warming seems to have placated the coalition and they have not yet filed suit.

Earlier this year, 17 states fought back against an EPA rule that would have them rewrite emissions rules. The rule would require 36 states to fine facilities that emit carbon dioxide during times of startup, shutdown and malfunction — something which they were previously exempt from. The new emissions rule was issued 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, the 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.”

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