Today, Rep. Fred Upton and the rest of his anti-environmental allies on the House Energy and Commerce Committee are probably suffering from a stingingbout of buyers' remorse as the Government Accountability Office report they requested didn't deliver the answer they were seeking. The Commerce Committee hoped to demonstrate that “In many instances, EPA has entered into settlements or consent decrees committing the agency to undertake significant new rule-makings subject to specific timelines or schedules, including rule-makings that may result in substantial new compliance costs.” Instead, what they got was the truth. Settlement agreements are rarely used. When they are used, they are simply requiring the Agency to complete a rule it is already mandated to complete by Congress.
The timing of the report is impeccable as the U.S. Chamber of Commerce President Thomas Donohue spent a great deal of time this morning railing against so-called "sue and settle" tactics and calling for Congress to undertake forms to address it.
What the GAO found was that several environmental laws do allow citizens to sue the Environmental Protection Agency (EPA) when it fails to take certain specified actions according to certain specified deadlines. These suits do not result in settlement agreements very often. And when these suits do end in settlement agreements, the effects of the agreements themselves are extremely limited. First, the agreements merely set a schedule to issue statutorily mandated rules and they never include terms related to the substantive outcome of the rule. Second, in setting the schedules, the agreements have only a minimal impact on the affected agency office's priority setting.
Finally, the GAO report found that the EPA always allowed for public comment on the settlement agreement--directly refuting industry's claims that they are cooked up behind closed doors, away from public scrutiny.
The report is worth a read, and I would particularly encourage Rep. Upton and other purveyors of the "sue and settle" myth to give it a close read.