Sue and settle cases shape regulatory agendas

Sue and settle cases shape regulatory agendas

Environmental sue and settle cases are increasingly being used as a technique to shape agencies' regulatory agendas.

Environmentalists have developed a legal mechanism to advance their regulatory agendas by suing an agency and then using the court system to negotiate settlement agreements that set rulemaking requirements favorable to their views.

In a new report, the US Chamber of Commerce identifies 60 "sue and settle" instances between 2009 and 2012. Those cases have resulted in EPA proposing 100 new regulations, including the Utility Maximum Achievable Control Technology (MACT) rule, the Chesapeake Bay Clean Water Act rules and various regional haze implementation rules, the report says. The report also alleges that this practice is utilized in other agencies from the Interior Dept. to the Agriculture Dept.

"It is clear that the sue and settle process is increasingly being used as a technique to shape agencies' regulatory agendas, without input from the public or the regulated community," said Bill Kovacs, the chamber's vice president for the environment, technology and regulatory affairs, in a statement accompanying the release of his group's report.


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On the basis that the practice deprives the public and the regulated entities of the ability to have meaningful input in the content of those final agreements, Sen. Grassley (R-Iowa) and Rep. Collins (R-Ga.) are pushing their "Sunshine for Regulatory Decrees and Settlements Act," which would force agencies to publish proposed consent decrees and settlement agreements for public comment before they are filed with courts. Agencies also would have to report to Congress about their use of consent decrees and settlement agreements while courts weighing proposed decrees and settlements would have to ensure compliance with normal rulemaking procedures.


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