Sue and Settle: Demonizing the Environmental Citizen Suit
| Publication year | 2014 |
I. INTRODUCTION
When federal agencies fail to issue regulations, respond to petitions, approve plans, review standards, or take any number of actions that are required by statute, the federal Administrative Procedure Act (APA) and federal environmental laws authorize citizens to sue the agencies to force them to carry out their legal obligations.(fn1) Indeed, Congress antici-pated that citizens would play an important role in the enforcement of federal environmental laws.(fn2) When faced with lawsuits for failing to perform non-discretionary duties, agencies tend to settle because their liabil-ity is clear.(fn3)
As part of such settlements, the agencies will generally agree to comply with their legal obligations according to a new schedule negoti-ated with the challengers.(fn4) Consequently, the agencies ultimately carry out their statutorily mandated obligations, albeit later than Congress de-manded. Needless to say, there are those who would prefer that the agen-cies continue to ignore their statutory obligations and abstain from issu-ing new regulations, approving air quality control plans, listing species as endangered, or taking other actions required by law. Perhaps unsurpris-ingly, these settlements have long been controversial. Public, private, and governmental interests continue to contest the proper balance and mech-anisms by which federal agencies function and fulfill their obligations.
In the spring of 2013, industry groups and states began a concerted lobbying effort to oppose citizen enforcement of the federal environmen-tal laws. The United States Chamber of Commerce and lobbyists for states created a catch-phrase-"sue and settle"-to demonize citizen enforcement and the federal government's practice of settling lawsuits it is destined to lose in court.(fn5) The Chamber alleged that the federal government, by settling lawsuits brought by citizens groups rather than defend-ing them in court, was colluding with those non-governmental organiza-tions and excluding other affected parties to reallocate the agencies' pri-orities and obligations.(fn6)
According to the Chamber, sue and settle occurs when an agency intentionally relinquishes its statutory discretion by accepting lawsuits from outside groups that effectively dictate the priorities and duties of the agency through legally binding, court-approved settlements negotiat-ed behind closed doors-with no participation by other affected parties or the public."(fn7) The Chamber criticized such settlements on the grounds that affected parties are not involved in the settlement negotiations, do not have adequate notice that settlement negotiations are ongoing, and do not have adequate opportunities to review and comment on the settlement agreements.(fn8)
In a May 2013 report, the Chamber reviewed lawsuits that were set-tled by the Environmental Protection Agency (EPA), the Department of Interior, and other agencies between 2009 and 2012. The report conclud-ed that seventy-one of those lawsuits were sue and settle cases.(fn9) With regard to the EPA, the Chamber alleged that the agency "chose . . . not to defend itself . . . at least 60 times between 2009 and 2012 [and] [i]n each case, it agreed to settlements on terms favorable to [special interest advo- cacy] groups."(fn10) The Chamber alleged that those Settlements "directly resulted in EPA agreeing to publish more than 100 new regulations, many of which impose compliance costs in the tens of millions and even billions of dollars."(fn11)
The report asserted that federal agencies are settling sue and settle lawsuits far more frequently during the current Presidential administration than during prior administrations.(fn12) The Chamber also criticized the congressional decision allowing courts to award attorney's fees in these kinds of lawsuits. The authors of the Chamber report noted that attorney's fees were awarded in forty-nine of the seventy-one sue and settle cases, concluding that "advocacy groups are incentivized by federal funding to bring sue and settle lawsuits and exert direct influence over agency agendas."(fn13)
At about the same time as the Chamber released its report, the American Legislative Exchange Council (ALEC), an organization of state legislators,(fn14) released a report criticizing sue and settle lawsuits on the grounds that the settlements frequently do not involve the participa-tion of states that will be affected by the settlements.(fn15) The authors of the report noted that the federal environmental statutes are generally en-forced through a model of cooperative federalism, where the States have important rights and obligations.(fn16) The authors complained, however, that "[w]ith sue and settle, the EPA has found a way to cut states out of the process, instead negotiating the agency's priorities with environmental special interests."(fn17) Like the Chamber report, the ALEC report charged that the sue and settle practice has increased dramatically over the past few years.(fn18)
State regulators have also criticized the EPA's litigation strategies on several recent occasions. In the spring of 2013, regulators from twen-ty-one states sent a letter to the EPA, urging the agency to refrain from agreeing to establish power plant carbon dioxide emission limits for power plants in settling a suit brought by environmental groups.(fn19) In addition, the Attorneys General of twelve states submitted a Freedom of Information Act request to the EPA to provide the states with "records concerning EPA's practice of entering into consent decrees with non-governmental organizations in cases concerning the implementation of several environmental programs"(fn20)-the agreements that critics label sue and settle agreements.(fn21) When the EPA denied that request, the Attor-neys General requested all records concerning negotiations between the EPA and non-governmental organizations that led to a consent decree regarding implementation of the Clean Air Act's (CAA) regional haze program.(fn22) When the EPA denied the request on the grounds that it was overbroad, the states filed a lawsuit challenging the agency's denial,(fn23) asserting that the "EPA's actions were not consistent with the coopera-tive federalism structure of the CAA or the Regional Haze program."(fn24)
Congress has also taken an interest in this issue. In 2012, Repre-sentative Ben Quayle introduced the Sunshine for Regulatory Decrees and Settlements Act to impose limits on settlement agreements and con-sent decrees involving federal agencies.(fn25) After the bill died in the 112th Congress, it was reintroduced in the 113th Congress as House Resolution 1493 and Senate Bill 714.(fn26) The proposed legislation would broaden intervention in lawsuits involving federal agencies, establish cumbersome settlement procedures, create a more formal notice-and-comment process for settlements, require agencies to provide more explanation of (and justification for) settlements, and change the rules for judicial supervision and review of settlements.(fn27)
Criticism of federal agencies' seemingly collusive settlement of lawsuits is not a new phenomenon. Toward the end of the last century, academics and grassroots environmental groups criticized "rulemaking settlement" by agencies.(fn28) At that time, critics were concerned that indus-try groups frequently sued agencies after the agencies promulgated regu-lations, and then the parties entered into settlement agreements-without public participation or the participation of public interest groups-that led to amendment of the rules in a manner favorable to the industry groups.(fn29) Critics were concerned that agencies and industry groups were negotiating substantive changes to rules without adequate public participation.
In contrast to those earlier challenges, the current sue and settle crit-ics focus primarily on settlements by agencies with environmental groups that change the timing of agency decision making, rather than the substance of the decision making.(fn30) Although the sue and settle lawsuits cited by critics rarely involved the negotiation of substantive changes to final rules, the reforms suggested by the Chamber and Congress are much more severe than the reforms suggested decades ago to address "rulemaking settlements" between agencies and industries that addressed such substantive changes.(fn31) The "cure" proposed for sue and settle lawsuits is much worse than the "disease" (if there is a disease at all).
Federal environmental laws establish a central role for citizens in enforcement of the laws, and citizens will continue to sue the EPA and other federal agencies when the agencies fail to meet statutory deadlines or carry out their duties under the laws, regardless of whether Congress adopts the proposed reforms. The reforms will simply make settlement of those lawsuits much more difficult, resulting in a longer litigation pro-cess that imposes higher costs on the government. In addition, since the cases are, for the most part, clear losers for the agencies, longer litigation will lead to higher awards of attorney's fees. More significantly, the longer litigation will delay the inevitable agency action and all of its en- vironmental and other benefits for many years. To the extent that reforms...
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