When Congress expanded the legislative power of the executive branch during the New Deal, it included a check on bureaucratic power called the Administrative Procedures Act. Under this, federal agencies were allowed to issue regulations that had the force of law without congressional action, but as part of the deal, the agencies had to follow a transparent procedure to collect public input when making new regulations.
Most federal environmental legislation, including the Clean Air Act, the Clean Water Act, and the Endangered Species Act, include citizen suit provisions that empower activists to challenge federal agency policy in court. For example, let’s say the Democratic appointees in the Biden administration want to roll back some Trump-era air quality standards but that doing so would take a lot of time and would include admitting that stricter regulations came with economic costs.
But thanks to the citizen suit provision of the Clean Air Act, the Sierra Club can sue the Biden EPA to challenge the Trump EPA’s air quality standards. In theory, this would be an adversarial action between the Sierra Club and a neutral EPA. But in reality, the Biden EPA and the Sierra Club are conspiring to produce the same new regulations. By suing, the EPA gets to bypass the regulatory process and come to a “settlement” with the Sierra Club that has the same force of law as a new regulation.
These “sue and settle” lawsuits were immensely popular under former President Barack Obama, costing taxpayers billions of dollars in regulatory costs and millions in legal fees. Former President Donald Trump put a stop to the practice by requiring notification of states and businesses that would be affected by litigation, as well as public hearings on the proposed settlements. The volume of suits and the amount paid to activist groups declined significantly under Trump.
Federal agencies should not be allowed to bypass the regulatory process through collusion with activist groups, and taxpayers shouldn’t foot the bill for those groups’ lawyers. Congress must step in and close this loophole, ending"sue and settle" shenanigans once and for all.