‘Sue and settle’ business is booming at Biden’s EPA
Washington Examiner
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Real wages are still down in President Joe Biden’s economy, but far-left activist lawyers are rolling in the dough thanks to the president’s embrace of a loophole Democrats and their allies use to implement policy without input from the public.
When Congress expanded the legislative power of the executive branch during the New Deal, it included a check on bureaucratic power called the Administrative Procedures Act. Under this, federal agencies were allowed to issue regulations that had the force of law without congressional action, but as part of the deal, the agencies had to follow a transparent procedure to collect public input when making new regulations.
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This process, known as “notice and comment rule-making,” can be costly, time-consuming, and sometimes embarrassing for administrations that are forced to publish the costs of their policies. Federal bureaucrats would prefer to write regulations in private without oversight or accountability from the public. In the 1970s, Congress created loopholes to allow that.
Most federal environmental legislation, including the Clean Air Act, the Clean Water Act, and the Endangered Species Act, include citizen suit provisions that empower activists to challenge federal agency policy in court. For example, let’s say the Democratic appointees in the Biden administration want to roll back some Trump-era air quality standards but that doing so would take a lot of time and would include admitting that stricter regulations came with economic costs.
But thanks to the citizen suit provision of the Clean Air Act, the Sierra Club can sue the Biden EPA to challenge the Trump EPA’s air quality standards. In theory, this would be an adversarial action between the Sierra Club and a neutral EPA. But in reality, the Biden EPA and the Sierra Club are conspiring to produce the same new regulations. By suing, the EPA gets to bypass the regulatory process and come to a “settlement” with the Sierra Club that has the same force of law as a new regulation. As an added bonus for Democrats, the activist groups that bring these suits get their lawyer fees paid by taxpayers.
These “sue and settle” lawsuits were immensely popular under former President Barack Obama, costing taxpayers billions of dollars in regulatory costs and millions in legal fees. Former President Donald Trump put a stop to the practice by requiring notification of states and businesses that would be affected by litigation, as well as public hearings on the proposed settlements. The volume of suits and the amount paid to activist groups declined significantly under Trump.
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As soon as Biden was sworn into office, the EPA put out the “open for lawsuits” sign, rolling back all of Trump‘s “sue and settle” reforms. The results have been predictable. The EPA has in two years of Biden paid twice as much as during four years of Trump, according to documents obtained through a Freedom of Information Act request by the federal spending watchdog Open the Books. The $6.9 million Biden’s EPA has paid is even higher than the $5.7 million paid in Obama’s last four years.
Federal agencies should not be allowed to bypass the regulatory process through collusion with activist groups, and taxpayers shouldn’t foot the bill for those groups’ lawyers. Congress must step in and close this loophole, ending “sue and settle” shenanigans once and for all.