In Case You Missed It: U.S. Chamber Shines Spotlight On Practice Of “Regulating Behind Closed Doors”

In 2013, the U.S. Chamber of Commerce released a report that examined the practice of “sue and settle,” a tactic by which special interest groups sue federal agencies in order to compel those agencies to propose certain regulations. As the U.S. Chamber explains, this practice is problematic because it thwarts meaningful public participation in the regulatory process, leads agencies “to reprioritize” their agendas and resources, produces regulations that cost the economy “billions of dollars annually,” and often results in rules “that encroach on state and local level environmental decision making.” 

Last week, the U.S. Chamber released an update of its 2013 study that found, between 2013 and 2016, the U.S. Environmental Protection Agency (EPA) increased its use of sue and settle agreements under the Clean Air Act. In fact, the EPA entered into 77 Clean Air Act consent decrees between 2013 and 2016 compared to just 60 between 2009 and 2012. 

To reduce the use of this costly tactic, the U.S. Chamber recommends that:

• The EPA make publicly available information about negotiated settlements of lawsuits where the agency is the defendant;
• Congress enact the Sunshine for Regulatory Decrees and Settlements Act, which would require federal agencies to give notice when they receive Notices of Intent to sue from private parties;
• Congress assume a more formalized role in overseeing deadline suits;
• Congress extend/stagger the deadlines contained in the Clean Air Act and the Clean Water Act;
• Congress redefine the term “mandate” in the Unfunded Mandates Reform Act; and
• U.S. states be given the right to challenge the federal government in court when an agency imposes new unfunded mandates and does not disclose or does not conduct a cost analysis calculating the burdens its new requirements are anticipated to impose on state and local government.

The Metals Service Center Institute strongly opposes the practice of “sue and settle.” Check out this excellent 2015 op-ed by Institute for Energy Research CEO Robert L. Bradley to learn more.