“Sue and settle” refers to a phenomenon whereby environmental special interests leverage the legal process to dictate the EPA’s priorities.
At heart, sue and settle results from the Clean Air Act’s overabundance of deadlines. Simply put: Congress tasked EPA with far more date-certain duties than the agency can handle. This wouldn’t necessarily be a problem in a statutory vacuum, but the fact is that the Clean Air Act affords green groups the right to sue EPA to compel the agency to perform its non-discretionary responsibilities. As a result of these dynamics [i.e., EPA doesn’t meet any of its deadlines, and green groups can sue to force the agency to meet its missed deadlines], environmental litigation groups like the Sierra Club can use the courts to set the agency’s priorities.
Of course, priority-setting necessarily entails policymaking—after all, it’s a decision on the use of the agency’s limited resources. Opponents of “sue and settle” argue that EPA should make policy with elected officials in Congress or the States (the regulated entity), rather than through litigation or negotiation with special interests.
Factually speaking, there can be no doubt that greens are employing deadline suits to control the EPA’s regulatory reins. As I demonstrate here, EPA is out of compliance with virtually all its Clean Air Act deadlines, which number well into the hundreds, by an average of more than 5 years. And in this report, on which I collaborated, we list all the Clean Air Act rules and regulations that were galvanized by sue and settle lawsuits.
Nonetheless, despite the evident existence of sue and settle problems, House Republicans on the Energy and Commerce Committee asked the Government Accountability Office to investigate the matter further. Yesterday, the GAO’s December report was finally released to the public. The document’s unfortunate tone is aptly imparted by its title: “Impact of Deadline Suits on EPA’s Rulemaking Is Limited.”
In this post, I’ll detail the GAO report’s flaws, and why its title is misleading.
The report’s fundamental flaw is that it plays the role of stenographer to the EPA. Virtually every conclusion reached by the report starts with, “According to EPA officials…” or some variant thereof. To wit:
GAO: “EPA issued 32 major rules from May 31, 2008, through June 1, 2013. According to EPA officials, the agency issued 9 of these rules following settlements in deadline suits.”
With this passage, GAO implies that *only* 9 of 32 major rules implicated deadline suits. But upon closer examination, this statistic is grossly misleading. Left unsaid is the fact that 15 of the 32 rules were either discretionary or non-justiciable! That is, they couldn’t have been subject to deadline lawsuits to begin with! (This is a pretty big mistake, FYI, one that demonstrates the perils of relying on the agency you are investigating). Moreover, 5 of the 32 rules followed court orders in deadline suits. So, the actual statistic is that 14 of 17 of major rules since 2008 resulted from deadline citizen suits.
GAO: “According to EPA officials, settlements in deadline suits primarily affect a single office.”
Incredibly, this exact sentence was repeated four times in the course of GAO’s short report [(see Executive Summary, page i, and page 14 (twice)]. The GAO’s bizarre reliance on this terminology suggests it is trying to emphasize that *only* a single office is affected by sue and settle type litigation. Left unsaid is that fact that the single office in question, the Office of Air Quality Planning and Standards, is a reg-writing powerhouse, due to its jurisdiction over Clean Air Act implementation. Indeed, the office renders more rules than all other offices combined. For example, of the 32 “major” rules since 2008, 26 were pursuant to the Clean Air Act.
GAO: “Office of Air Quality Planning and Standards officials said that deadline suits impact the timing and order in which rules are issued but not which rules are issued.”
GAO repeated this sentence twice, and it gets to the heart of criticism leveled at sue and settle: Do deadline suits regulate the agency’s priority setting? However, I’ve read this sentence a hundred times, and I still don’t understand what it means. Aren’t “timing” and “order” integral to “which rules are issued,” especially given the fact that agency is out of compliance with virtually all its responsibilities, and therefore subject to citizen suits to give priority to virtually all its responsibilities? This sentence supposedly addresses the chief complaint regarding deadline suits, yet it makes no sense. I suspect it was intentionally garbled by EPA, and I don’t understand why it wasn’t contested by the GAO.
Obviously, the GAO’s near total reliance on EPA for information effectively placed blinders on the investigation. To read an investigation of sue and settle at EPA that actually attempts to address the matter at hand, read this law review journal article I wrote last year, “Deadline Citizen Suits: An Idea Whose Time Has Expired” For specific examples of suspicious sue and settle activity, see here, here, here, and here.