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Sue and settle forcing ‘new, deficient’ regulations, warns NCPA



Interest groups use of sue and settle litigation has forced the US Environmental Protection Agency to issue “new, deficient” regulations, claims a new report by the National Center for Policy Analysis.

The new report says 20 US statutes contain “citizen suit” provisions, allowing citizens to sue a federal agency when it fails to carry out nondiscretionary duties by the deadlines. Once a suit has been filed, the parties work out a settlement or consent decree, allowing regulation-friendly parties to craft rulemaking plans with a federal agency, blocking out third parties, the non-profit warns.

 “Until there is reform, interest groups will continue using litigation as a tactic to direct agency action and circumvent standard rulemaking procedures,” says NCPA Senior Research Fellow Anne Norman. “It is disingenuous to suggest, as some in the EPA have, that sue and settle does not actually interfere with required rulemaking procedures,” she added in an August 13, 2014 statement.

The agreements are often procedurally deficient, the report warns, and the deadlines agreed to often leave interested parties with insufficient time to comment effectively on the proposed rules.

“Public oversight and participation is critically important to the regulatory process,” emphasizes Norman. “Tactics such as sue and settle that circumvent those procedures deserve the strictest scrutiny.”

  • From 2009 to 2012, the U.S. Chamber of Commerce puts the number of sue and settle lawsuits at 71, with the Sierra Club and WildEarth Guardians leading the way as plaintiffs in 34 and 20 cases, respectively.  The EPA was a defendant in 60 of these cases.
  • After a lawsuit by groups including the Environmental Defense Fund and the Sierra Club, the EPA issued its Utility MACT rule, which regulates mercury emissions for power plants. The strict deadlines constricted the ability of the EPA to issue an effective final rule. Currently, the regulation carries an annual cost of $9.6 billion. At year-end 2012, 9.5 per cent of coal-fired generation capacity had announced plans to retire due to the rule.
  • Environmental groups used sue and settle in five separate lawsuits to force EPA action on states’ Regional Haze plans. The Regional Haze program is intended to be a state program, but consent decrees from sue and settle suits have forced the EPA to impose its own federal plans on states, causing statewide electricity costs to skyrocket.

Sue and settle is an attractive vehicle for regulation because it is very difficult for states and industries to intervene in these lawsuits, the report claims. Moreover, plaintiffs are often compensated for their attorneys’ fees, incentivizing litigation. 

The National Center for Policy Analysis (NCPA) is a nonprofit, nonpartisan public policy research organization, established in 1983. It brings together the best and brightest minds to tackle the country’s most difficult public policy problems — in health care, taxes, retirement, education, energy and the environment. Visit the website today for more information.


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