A new report from the Chamber of Commerce takes a look at the highly secretive way in which new regulations are created in part due to the numerous lawsuits filed by environmental groups. The report is titled: “Sue and Settle: Regulating Behind Closed Doors.”
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 negotiated behind closed doors—with no participation by other affected parties or the public.
As a result of the sue and settle process, the agency intentionally transforms itself from an independent actor that has discretion to perform its duties in a manner best serving the public interest into an actor subservient to the binding terms of settlement agreements, which includes using congressionally appropriated funds to achieve the demands of specific outside groups. This process also allows agencies to avoid the normal protections built into the rulemaking process—review by the Office of Management and Budget and the public, and compliance with executive orders—at the critical moment when the agency’s new obligation is created.
And a summary of how these regulations are crafted behind closed doors:
What Is the Sue and Settle Process?
Environmental advocacy group sues federal agency to issue regulations by a specific deadline.
Environmental advocacy group and federal agency work out an agreement.* *Conducted behind closed doors.
Draft consent decree or settlement agreement is lodged with the court.
Under some laws the federal agency invites and receives public comments on the decree or agreement.* *Too little, too late: the damage has been done.
Court finalizes the decree or agreement.* *It generally does not matter to courts if the decree or agreement is not required or authorized by statute.
Resourceful Earth has written previously about these secret “sue and settle” agreements but it is nice to see an in depth report of how exactly this process works.
What is the end result of this constant barrage of regulations implemented in collaboration with these environmental groups? Huge costs for the American consumer:
Read the whole report here.