The following was originally published on RegBlog on May 20, 2013.
Congressional Republicans have attacked the Obama administration by accusing federal agencies of engaging in collusive litigation practices with public interest groups (pejoratively dubbed “sue-and-settle”). Republicans in both the 112th and 113th Congress have introduced legislation that purports to address this practice. Senate Republicans have most recently leveled similar accusations at Ms. Gina McCarthy during the confirmation proceedings for her nomination to be the next Environmental Protection Agency (EPA) Administrator.
Yet when railing against this alleged practice, these members of Congress have failed to substantiate their charges with actual proof. And they never acknowledge the harmful consequences that the extreme bills would produce.
The so-called “Sunshine for Regulatory Decrees and Settlements Act” (introduced in slightly different forms as H.R. 3862 in the 112th Congress and S. 714 in the 113th Congress) creates the legal opportunity for third party “intervenors” to obstruct settlement talks and prolong illegal, harmful actions when federal agencies are sued for violating federal laws.
Specifically, the bills create a presumption requiring courts to allow non-party industry intervenors to participate in federal agency settlement discussions. The bill also establishes devious means by which these intervenors may disrupt and obstruct the settlement of lawsuits that the government believes should not be defended in court.
Let's be clear. Sponsors of these extreme bills want industry intervenors to be given the right to participate in settlement discussions to argue that agencies like the EPA have not broken the law—even when agencies admit that they have. These industry intervenors would like to oppose rulemakings and schedules to remedy the legal violations, over the objections of injured plaintiffs, even when the agency is willing to follow the law and correct its illegal behavior.
Under current law, third party intervenors have no legal right to participate in settlement discussions involving any party, whether government, private entity, or individual. For example, in a lawsuit by female employees against a national supermarket chain over claims that they are paid less than their male co-workers, Congress does not (and should not) give male employees the right to participate in and block settlements between the supermarket and the female workers because the men want the pay discrimination to continue.
However, this is precisely what the described legislation would foster by allowing unlawful federal agency action or inaction to persist and the promise of health and safety protections to remain unfulfilled.
Statutory deadlines are written into many federal statutes, and these congressional deadlines ensure that statutes are carried out to advance important safeguards for public health, the environment, workers, consumers, and investors. David Schoenbrod, a witness at the hearing for H.R. 3862, testified that EPA has met only “14 percent of the hundreds of deadlines set for it by Congress.”
When such a deadline passes, Congress has empowered citizens, states, and corporations to enforce the law against wayward federal agencies for their failure to meet statutory deadlines and other legal responsibilities. The judiciary oversees enforcement of these statutory requirements in court and by approving settlements agreements and consent decrees.
What’s more, current law is replete with legal mechanisms that ensure adequate public participation, transparency, and fulsome rulemaking procedures before agencies commit to binding, substantive decisions with the force of law.
Take, for example, EPA’s recently finalized mercury and air toxics standards for power plants. EPA missed a mandatory statutory deadline by nearly 10 years to promulgate national standards that would for the first time limit mercury, arsenic, and acid gases emitted by fossil fuel-fired power plants.
When sued, EPA agreed in a consent decree to propose standards by a certain date and to finalize standards by a later date. The agency did not (and could not) commit to a particular outcome or policy position. Consistent with the Clean Air Act, EPA solicited public comment on the consent decree. Power industry intervenors not only opposed the rulemaking schedule but also argued (unsuccessfully) that EPA was forbidden from adopting the long overdue standards. (The judge declined to credit these arguments and approved the decree.) Later, when EPA proposed standards, it provided nearly 140 days of formal public comment opportunity, and then finalized toxic air pollution standards for power plants. At that point, industry parties brought lawsuits challenging substantive and procedural aspects of the new standards.
Today’s legislative proposals would upend this process. These radical bills are actually designed to enhance the ability of industry intervenors to thwart the obligation of agencies like EPA to follow the law and reduce hazards to the public that occur when industry fails to comply. (Indeed, industry challengers to the mercury and air toxic standards testified that their experience was a prime reason they believed the House bill was necessary.) No longer would a federal agency be able to resolve litigation early in the process by settling lawsuits that it would clearly lose.
Instead, industry intervenors would oppose rulemaking schedules that agencies agree to meet to remedy missed statutory deadlines. This would further harm already injured plaintiffs and the public, increase transaction costs for the parties, and unnecessarily waste the resources of an already strained judicial system. This directly conflicts with the widely accepted policy of the federal judiciary that favors the “compromise and settlement of disputes,” and ignores the very reason that deadline suits are brought in the first place.
A group of Senate Republicans recently demanded that EPA promise to allow industry intervention in agency settlement talks, implying they would filibuster Ms. McCarthy's nomination otherwise. EPA responded to the demand thusly:
[T]he EPA and the Department of Justice must have latitude to respond to [litigation against the government], on a case-by-case basis, in a manner that serves the public interest and is fully consistent with the government’s legal obligations. The EPA is unaware of any precedent for the U.S. Government, or any federal agency, to take such a sweeping position [guaranteeing intervenor participation], constraining the conduct of its defense in lawsuits brought against the government.
This is what is really going on. Lacking the votes to amend and weaken the substantive laws that federal agencies enforce, some Congressional Republicans are resorting to indirect attacks designed to obstruct enforcement of federal laws administered by agencies. Their extreme anti-enforcement bills are intended to constrain the government's conduct defending itself against lawsuits, and to undermine the executive branch's legal obligations to follow the law. Without so much as debating the merits of substantive statutes whose enforcement they seek to undermine, the proponents of these bills seek to thwart and effectively alter federal laws too popular to be weakened by direct amendment.
In purporting to solve a problem that has not been shown to exist, and seizing on a "solution" that mandates industry intervention in agency settlement negotiations, these political efforts represent irresponsible attempts to weaken federal laws and their enforcement. The efforts are just as extreme as the direct conservative attacks on regulatory safeguards that failed during the 112th Congress, and the anti-enforcement bills should fail for the same reasons.