The office of House Majority Leader Eric Cantor just released a partisan report attacking the Obama administration as “The Imperial Presidency.”
What motivated me to write this post was the decision by Cantor’s office to drag my organization, the Natural Resources Defense Council, through the muck of partisan rancor that characterizes the report.
Republicans have conjured up a phantom practice they call “sue-and-settle,” in which federal agencies and outside plaintiffs allegedly conspire to settle lawsuits under improper circumstances, settling on terms that trample the valid procedural and/or substantive interests of other parties, especially industry. This Republican phantom in turn serves as a bogeyman-strawman that fuels a political controversy of their own creation.
But it turns out that the real agenda for these Republican critics is to block enforcement of federal laws, especially health and safety laws, that some Tea Party politicians and corporations oppose.
These opponents cannot directly (or easily) attack federal health and safety laws that enjoy popular support. So they have concluded they must resort to inventing an alleged controversy surrounding the actual enforcement of those safeguards. In this way they hope to undermine and impede the laws themselves.
Here is the cursory indictment passage from the Cantor report [pdf, p.23]:
The Obama Administration regularly relies on “sue-and-settle” tactics to avoid Congressional scrutiny and minimize public participation in the rulemaking process, while fast tracking the priorities of environmental groups. In practice, groups like the Sierra Club and the Natural Resources Defense Council will sue the EPA for failing to meet a nondiscretionary duty, usually a statutory deadline. Rather than fighting the lawsuit, EPA officials – many of whom used to work for the very groups that are now suing – will make enormous concessions in a settlement agreement that requires the agency to take a particular action. These settlement agreements are the product of closed-door negotiations between the EPA and environmental groups – states, industry, stakeholders, and the public have no voice in the process. Furthermore, these settlement agreements can be legally binding on future Administrations, raising serious constitutional concerns.
The first thing one notices when reading this passage is there is not a shred of evidence to support the charges. No facts, no examples, no footnotes. It’s like watching a bad junior high school tennis match between players named Rhetoric and Assertion. Rhetoric, Assertion, Rhetoric, Assertion. Out of bounds.
The next striking thing is the basic irony that Mr. Cantor is arguing that the Executive Branch should defend in court to the bitter end its failure to comply with a statutory deadline set by Congress. If Congress does not like the deadline, it can change it. But the deadline is the law, and Mr. Cantor surely does not want the agency to violate a duly enacted law. An administration that defied congressionally enacted deadlines, even when sued to comply with them, would be thumbing its nose at Congress—intruding on congressional prerogatives—not the other way around.
Let me now parse the claims in this passage to show how wrong and misplaced they are.
Claim: “The Obama Administration regularly relies on 'sue-and-settle' tactics to avoid Congressional scrutiny….”
Wrong: settlement agreements and consent decrees are public documents, fully available for Congressional and public review.
Claim: “. . . and minimize public participation in the rulemaking process,”
Wrong: No settlement agreement or consent decree dispenses with any legally required public participation in any rulemaking process. “Consent decrees” in particular provide opportunities for public comments to the settling agencies under many environmental statutes (like the Clean Air Act and Superfund regulations) before being lodged in court. And the public has the chance to comment on a consent decree when it is lodged with a court, because judges must inquire whether the decree is in the “public interest” before approving it.
Settlement agreements may only result in agency promises to conduct rulemakings that must fully comply with all public participation requirements, including public notice and comment opportunities. Under longstanding Justice Department policy, which this Administration has followed, settlements (including consent decrees) may not dictate the results of a rulemaking, or even that the agency promulgate a final rule. And any settlement agreement would be invalid if it purported to dispense with public participation opportunities required by the rulemaking process. Revealingly, the Cantor report reveals no counter example to these longstanding practices.
Claim: “. . . while fast tracking the priorities of environmental groups.”
Wrong: as the very next sentence of this internally contradictory passage indicates, settlement agreements and consent decrees result primarily from an agency’s failure to meet a nondiscretionary statutory duty, usually a statutory deadline, and usually one that is long overdue. That is not fast tracking anything, and by definition it is the agenda of the federal statute—not the agenda of any environmental group—that settlement agreements are carrying out. Only in the world of dysfunctional Washington politics could a member of Congress level the baseless charge that it is "fast tracking" something to finally enforce long overdue requirements of federal law authored by Congress.
Claim: “In practice, groups like the Sierra Club and the Natural Resources Defense Council will sue the EPA for failing to meet a nondiscretionary duty, usually a statutory deadline.”
This unremarkable point may be correct depending upon the subject of a lawsuit, because many federal laws give any person, including corporations, the legal right to bring lawsuits challenging an agency's failure to comply with federal statutes. But note the report’s calculated decision to single out two environmental non-profit groups that pursue their legal right to go to court, while failing to mention that far higher numbers of corporations, or conservative ideological associations, routinely go to court as well. Even the most casual review of lawsuit statistics would show that corporations sue EPA in far greater numbers, and with greater frequency, than Sierra Club, NRDC or other environmental organizations.
Claim: “Rather than fighting the lawsuit, EPA officials – many of whom used to work for the very groups that are now suing….”
Wrong: To my knowledge there are very few former Sierra Club or NRDC officials working at EPA. The grand total of officials in EPA’s Office of Air and Radiation that I am aware used to work for NRDC or Sierra Club? Zero. In EPA’s Water Office? One.
Claim: “EPA officials . . . will make enormous concessions in a settlement agreement that requires the agency to take a particular action.”
Wrong: The report identifies no such "enormous concessions." And agencies may not and do not agree to do anything more than what federal statutes already authorize or require them to do. Left unsaid by the report’s charge is the fact that agencies most often are just agreeing to do what statutes already require them to do. For example, the most frequent outcome of settlement agreements or consent decrees is that the agency will agree to do no more than propose and finalize rulemakings that Congress itself requires in federal statutes. And even then, EPA does not commit to particular outcomes for those rulemakings. For example, EPA will simply agree to issue a proposed rulemaking, providing public notice and full opportunity for comment by all interested parties, and decide whether to issue final rules (or not) based upon those comments and what the statute requires. Tellingly, again, the Cantor report fails to identify a single settlement agreement in which EPA or the Obama administration has legally bound itself to any particular outcome in a future rulemaking.
Claim: “These settlement agreements are the product of closed-door negotiations between the EPA and environmental groups – states, industry, stakeholders, and the public have no voice in the process.”
Of course settlement discussions surrounding lawsuits are “closed-door.” That is universally true across the entire legal system: when private companies sue federal agencies, when state agencies sue federal agencies, when private companies sue state agencies or other private companies, and when any member of the public sues anyone. In none of those instances do third parties have any legal right to be privy to the settlement discussions. Mr. Cantor’s report is wrong and even inflammatory to imply that this is true only for settlement agreements between EPA and environmental groups.
Claim: “Furthermore, these settlement agreements can be legally binding on future Administrations, raising serious constitutional concerns.”
Wrong: President Reagan’s Attorney General, Ed Meese, authored a policy on settlements that has been followed by every Administration since (including the present one). Under the “Meese policy,” as it is called, federal agencies routinely refuse to settle suits over how they carry out their duties (such as adopt rules that comply with congressionally enacted standards) in consent decrees that are enforceable in court. The Meese Memo has been interpreted by every subsequent Administration to require most of these settlements to be memorialized in out-of-court settlement agreements rather than in-court consent decrees. This has the effect of allowing the United States to avoid being subject to later suits to enforce injunctive relief provisions in such settlements. Why? The United States has not waived its “sovereign immunity” to enforcement of injunctive relief provisions in out-of-court settlements, meaning that when a settling plaintiff—whether an industry trade group, a state, or a non-profit—obtains an out-of-court settlement with the government, and that settlement requires an agency to comply with the law, the plaintiff’s only recourse if the agency violates that agreement is generally to go back to square one and resume the lawsuit that prompted the settlement in the first place. To say that a future administration is bound by such a document is a gross exaggeration. And for Mr. Cantor to blame the existence of such out-of-court settlements on this Administration, when they are mandated under policy written by former Republican Attorney General Meese, is perplexing indeed. Finally, Attorney General Meese ostensibly wrote this policy to avoid potential constitutional concerns, and it has long been thought to do so.
This passage in the Cantor report does one thing successfully, however, and that is to obfuscate and conceal a paramount fact: the alleged wrongdoing that the report attacks is the enforcement of federal laws on the books, through long-established legal procedures available to and followed by corporations and states and public interest groups and any member of the public.
Lawsuit settlements happen all the time in this country and serve important goals, like avoiding unnecessary litigation, preserving judicial resources and, perhaps most important of all, ensuring enforcement of laws of the United States.
Singling out settlements by the Obama administration is misplaced, considering that Republican and Democratic administrations before this one routinely entered into settlements with a variety of stakeholders. And singling out just settlements by environmental non-profit groups is equally unfair, since corporations, states and conservative stakeholders avoid litigation with the federal government by entering into settlement agreements too.
A prominent former Republican politician has some advice that Mr. Cantor and House Republicans attacking law enforcement would do well to follow. Michael Bloomberg has said “I've always thought if we don't want to enforce laws on the books, we should remove them from the books. But when you have laws, you breed contempt if you don't enforce them.” Settlement agreements founded on lawsuits by the public help enforce the law when the government is breaking it.
Republicans in the House of Representatives have been unable to remove from the books environmental laws that they do not want to be enforced. Led by Tea Party extremists, Republicans have voted [pdf] nearly 250 times to weaken our nation’s environmental laws during the 112th Congress, making this House the most anti-environmental in our nation’s history. But these direct ideological assaults have failed to become law.
The Cantor report ends up proving not wrongdoing by the Obama administration, but instead how House Republicans are resorting to indirect attacks on environmental law enforcement because they cannot tear down those laws directly. Attacks like this report passage show a contempt for the facts, reveal contempt for law enforcement and therefore breed contempt for laws of the United States.
U.S. environmental laws deserve to be enforced as written, and when you peel back the layers of Republican “sue-and-settle” allegations, what’s left is the desire to prevent such enforcement.