Sue and Settle Once Again Rears its Ugly Head
One of the more sinister trends occurring in the environmental policy realm lately has been the rise of so-called “sue and settle” agreements. The U.S. Environmental Protection Agency (EPA) and other federal agencies have been using such agreements over the past several years to determine the agencies’ regulatory priorities to the detriment of the states. The American Legislative Exchange Council (ALEC) first highlighted and described the damaging nature of sue and settle in the 2013 publication, The U.S. Environmental Protection Agency’s Assault on State Sovereignty.
As a reminder, here is how sue and settle works: An environmental litigation organization will sue EPA for failing to meet a deadline for regulatory action. Instead of challenging the lawsuit in court, however, EPA and the environmental group will immediately engage in negotiations, which typically lead to friendly settlements that determine deadlines for EPA action. By dictating how EPA should use its limited resources and manpower, these sweetheart settlements effectively render official policy.
This is problematic because states are oftentimes caught off guard and are completely shut out of these settlement negotiations; input from the states is essentially replaced by input from professional environmentalists. Significantly, during the time period between 2009 and 2013, EPA imposed at least $13 billion in annual regulatory costs directly as a result of sue and settle litigation. Occurrences of these sue and settle agreements almost quintupled during President Obama’s first term when compared to the number of occurrences during his predecessors’ administrations.
Last week, sue and settle unfortunately reared its ugly head once again. After settling with the Environmental Defense Center and the Center for Biological Diversity, the Department of Interior has agreed to halt its approval of hydraulic fracturing permits off the California coast until the agency can further study whether the practice is safe for the environment. These two environmental groups suggest that there were significant flaws with Interior’s permitting process, claiming that the drilling operations were outdated and that more research of potential environmental impacts was needed.