The Chamber of Commerce has joined leagues with Congressional extremists to urge obstructing the enforcement of federal health, environmental and financial safeguards that have proven too popular to weaken by direct amendment. The Chamber is carrying the water of Congressional Republicans who have introduced legislation that they pretend is about collusion but in reality is designed to obstruct enforcement of federal health, safety, environmental, financial and consumer protection laws.
In support of this highly partisan enterprise, the Chamber recently issued a report [pdf] that takes aim at the Obama administration and accuses federal agencies of engaging in collusive litigation practices with public interest groups (a practice they disparage as “sue-and-settle” litigation). The Chamber report is like a Ponzi scheme of falsehoods, causing the report to collapse on itself and its conclusions to fall apart.
The very “methodology” of the Chamber report reveals its duplicity. As the Republican talking points go, so-called “sue-and-settle” practices “appear to be the result of collusion, where an agency shares the goals of those suing it and takes advantage of litigation to achieve those shared goals” See also, e.g. introduction to House bill. [pdf] This is a serious charge to level at the executive branch—but Congressional Republicans have proven utterly incapable of backing up the allegation with actual proof of collusion.
Faced with this dilemma, the Chamber of Commerce chose a “sue-and-settle” methodology that consists of Internet searches identifying cases in which EPA and an environmental group entered into a consent decree or settlement agreement. The report’s methodology (pages 46-49) quietly dispenses with any need for proof of collusion or impropriety. And it is unsurprising that the Chamber’s methodology found instances of settlements with EPA.
But the Chamber report then proceeds to jam these unremarkable square facts into the round hole created by the collusion-imagining politicians. Voila! A shoddy report that redefines and significantly expands the already politically loaded sue-and-settle allegation precisely because there is no evidence of collusion.
Early on, the report authors slip and reveal one of the dirty little secrets behind the Chamber's political enterprise. In poker, the following statement is called a "tell," because it inadvertently reveals how a player is playing his hand. The Chamber confesses that “[a] major concern is that the sue and settle tactic, which has been so effective in removing control over the rulemaking process from Congress—and placing it instead with private parties under the supervision of federal courts—will spread to other complex statutes that have statutorily imposed dates for issuing regulations.” (emphasis added) (Report p. 7.)
This tells us that the Chamber knows what's really going on and why it is resorting to misrepresentation throughout its report. Namely, the Chamber understands that the agencies it excoriates are entering into settlements and consent decrees to carry out statutorily required obligations for which the agencies lack discretion.
But following this slip, the Chamber must return to the trope that runs throughout its report, that agencies have legally preserved discretion that they are giving away through decrees. That too is false and unproven, of course, but without the loud insistence to the contrary, the Chamber would have even less cause to issue this weightless report.
Let’s look at some of the core falsehoods in the Chamber report.
Chamber Fiction: “Perhaps the most significant impact of these sue and settle agreements is that by freely giving away its discretion in order to satisfy private parties, an agency uses congressionally appropriated funds to achieve the demands of private parties.” (Report p. 7.)
Facts: The legal obligations in these agreements involve mandatory duties written into laws passed by Congress. Agencies lack discretion as a matter of law to ignore or contravene these mandatory statutory duties. Most of these obligations concern statutory deadlines. For example, the Clean Air Act requires EPA to review national air quality standards every five years. The Chamber report does not begin to explain where EPA enjoys discretion to miss this deadline, even though the report lists this as a prime example where EPA has discretion to do something other than what the law says. (Report p. 43.)
Indeed, the Clean Air Act spells out in unmistakable language the basis for citizen suit lawsuits against the government: lawsuits in federal district court are permitted only when the act or duty to be performed by the EPA Administrator is "not discretionary." (Clean Air Act s. 304(a).)
It is revealing that even the Chamber identifies its demonstrably false discretion trope as the “most significant impact” of the report’s “sue and settle” allegation. The report’s misrepresentation of mandatory statutory duties for agencies ends up confirming the Chamber’s agenda to prolong government violations of statutory health and safety obligations.
Take this recent EPA consent decree [pdf] from the Chamber’s hit list. (Report, p. 43.) EPA agreed to a date to finalize its review of air quality standards for soot pollution, after the agency missed the mandatory 5-year deadline. The decree contains the following language—typically included in similar decrees—that suggests that the Chamber might not even be reading the settlements it condemns for allegedly stripping agencies of legally preserved discretion:
Nothing in this Consent Decree shall be construed to limit, expand, or otherwise modify the discretion accorded to EPA by the Clean Air Act or by general principles of administrative law, including the discretion to alter, amend or revise any final action EPA takes [relating to soot standards], except the deadline specified therein. EPA’s obligation to [revise soot standards] by the times specified therein does not constitute a limitation, expansion or other modification of EPA’s discretion within the meaning of this paragraph.
Amazingly, the Chamber report highlights this consent decree as one in which EPA is denied discretion and rule outcomes are dictated. (Report, p. 19.) This is not just nonsense, it’s nonsense on stilts.
Chamber Fiction: “The practice of agencies entering into voluntary agreements with private parties to issue specific rulemaking requirements also severely undercuts agency compliance with the Administrative Procedure Act. . . . .” (Report p. 6.)
Facts: The Chamber does not begin to show that the entry of a settlement agreement or consent decree violated administrative laws in the report's catalogue of examined cases. (Report, pp. 30-42.) Nor does the report back its charge that the agreements in these cases committed agencies to adopt specific rulemaking requirements that violated administrative laws. With all the high-priced corporate attorneys available to challenge settlement agreements for violating administrative law, wouldn’t you think the Chamber would have loads of examples to back this claim? The Chamber is blowing political smoke because it knows (or should know) that its claims are legally unsupported.
So how does the Chamber propose to fix the “problems” it identifies? Extreme legislation that would institute a role for industry attorneys to obstruct enforcement of health, safety and environmental laws opposed by the Chamber. The Chamber actually has the nerve to call this extreme legislation “noncontroversial.”
The Sunshine for Regulatory Decrees and Settlements Act is as far from non-controversial as the Chamber report is from the facts. In addition to obstructung enforcement of safeguards, flouting traditional concepts of separation of powers and usurping the role of the judiciary, the proposed legislation blithely overturns controlling Supreme Court precedent. In Local Number 93 v. City of Cleveland, 478 U.S. 501 (1986), the Court stated that:
It has never been supposed that one party-whether an original party, a party that was joined later, or an intervenor-could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent.
The Chamber hates this established legal understanding because it prevents industry lawyers from obstructing agency decisions to follow statutory obligations that some of the Chamber’s member corporations might wish to remain unenforced.
So let’s review the Chamber’s list of villains:
- Congress is to blame for its nerve giving citizens the right to hold government accountable when federal agencies break laws: “In the final analysis, Congress is also to blame . . . Most of the sue and settle lawsuits were filed as citizen suits authorized under the various environmental statutes.”
- The courts are to blame for “rubber stamping” agency agreements that remedy government agencies’ law-breaking. The Chamber even charges that “generally it does not matter to courts if the decree or agreement is not required or authorized by statute.” (Report p. 4.) This is a very serious charge, made all the more outrageous by the Chamber’s absolute failure to substantiate it. The report identifies no instances of courts approving consent decrees or agreements requiring agencies to undertake actions contrary to statutes.
- And finally, of course, citizens and public health groups are to blame for having the nerve to hold government accountable, enforcing laws passed by Congress using means long authorized by Congress.
You will have anticipated this by now, but who remains blameless? Why, the Chamber and its member corporations, of course. They are only demanding the right to obstruct enforcement of laws on the books. They are only seeking to allow harmful levels of pollution and financial abuses to continue because they don’t like the laws that curtail these harms. (The Chamber report also rails against the Dodd-Frank financial law and the administration’s health care law with their “statutorily imposed” deadlines.)
In the final analysis, the Chamber of Commerce report is like word-confetti for a political parade: it’s insubstantial, full of shredded legal and factual errors, and intended to celebrate a partisan march on legal safeguards. As with the extreme legislation it pushes, the report ends up being a thinly veiled attempt to promote a political agenda to obstruct enforcement of legal safeguards that protect Americans against harmful corporate activities.