by Greg Walcher, E&E Legal Senior Policy Fellow
As appearing in the Daily Sentinel
House Republicans were so upset that they held two committee hearings during 2023, and in November the Committee on Oversight and Accountability announced that it will investigate the EPA’s “use of secretive ‘sue-and-settle’ practices.” The chairman says the EPA uses the tactic “to avoid congressional oversight” and implement policies that special interests want.
Letting outside groups sue the government to compel enforcement actions dates from the Nixon years, and during the Reagan era became a favorite tactic of the environmental industry. During the Clinton administration, several agencies discovered they could use outside groups to file “friendly lawsuits,” requiring them to do what they wanted to do anyway, thereby short-circuiting all sorts of administrative hurdles. Convincing friendly groups to litigate was easy — the government would agree to pay their legal fees as part of the settlement. The result would be a court “consent decree,” its details and costs often sealed from prying eyes.
Now, some Republican congressmen have even introduced a bill, the “No Regulation Through Litigation Act” to put a stop to it. And they want hearings, though apparently there is plenty of time to discuss this over the next few decades before acting on it.
James Varney wrote an excellent analysis for RealClearInvestigations, explaining that the practice, which was implemented on steroids by Obama officials, with more than 2,260 such settlements during his second term, just at Interior and the EPA. Trump appointees blocked the practice, but not for long. Varney writes that “Under Biden’s Lawfaring Eco-Politics, It’s Back.”
