Last week, Rep. Doug Collins (R-Ga.) and Sen. Chuck Grassley (R-Iowa) continued the parade of anti-regulatory bills resurrected from past sessions of Congress by introducing in their respective chambers the Sunshine for Regulatory Decrees and Settlements Act of 2015 (SRDSA). While all of these anti-regulatory bills are categorically terrible, the SRDSA really needs to be singled out for special condemnation. After all, it is the only one of the lot that purports to take on a problem—so-called “sue and settle” litigation—that no less than the Government Accountability Office (GAO) has debunked as a myth. Nevertheless, Messrs. Collins and Grassley have pressed ahead with the bill—versions of which they introduced previously in 2013—despite the pressing real problems confronting their constituents and our country.
It has long been an article of faith among conservative lawmakers that agencies such as the Environmental Protection Agency (EPA) convene in smoke-filled, back-room meetings with Big Enviro to hash out the terms of the next slate of job-killing regulations. The plan is put into action through “sue and settle” litigation, in which an environmental group or other public interest organization sues an agency for not issuing the favored regulation. The confederate agency upholds its part of the bargain and meekly settles the litigation by agreeing to issue a fully gestated regulation drafted to meet the environmental group’s exacting specifications. The delusion almost makes sense—provided that one is not only ignorant of basically the entirety of administrative law but also willing to ignore large swaths of reality.
And in swoop Rep. Collins and Sen. Grassley to the rescue with the SRDSA. The bill would create additional procedures that agencies must follow when responding to lawsuits from public interest groups that seek to force agencies to implement the laws as Congress has directed them to. Among other things, the agencies would have to provide additional opportunities for regulated industries to intervene in the suits and allow for public comment on settlement agreements before they are finalized.
The problem with all of this, of course, is that the “sue and settle” conspiracy theory represents a gross misunderstanding of how these suits actually work. In point of fact, the scope and effect of the litigation that the SRDSA targets is quite modest, and the issues the litigation raises are about as mundane as trip to the barber shop. In many statutes—passed by legislators like Rep. Collins and Sen. Grassley—agencies are required to take non-discretionary specific actions by specific dates. Because of recent austerity measures—with which Rep. Collins and Sen. Grassley are no doubt familiar—agencies occasionally fail to take the specific action before the specific date passes, amounting in a legal violation as clear as doing 65 mph in a 45-mph zone. Several of these laws empower individual citizens to sue the agency to correct these violations, and so they do. Agencies don’t have much of a defense to the lawsuits, so they have little choice but to acknowledge that they failed to follow the law as written and to agree to take the very action that they should have already taken by then. This is, quite clearly, good government in action. Note, however, that the settlement agreement doesn’t dictate the substance of the action—that is strictly controlled by the underlying law and any relevant policy or science considerations. Instead, all that is dictated is the timing of the action.
Last month, the GAO patiently tried to explain all of this in a report requested by Rep. Fred Upton (R-Mich.) and the rest of his anti-regulatory allies on the House Energy and Commerce Committee. Evidently, the GAO’s message fell on deaf ears. In fact, a quick side-by-side comparison of the GAO report’s key findings and the recent press release from Rep. Collins and Sen. Grassley announcing the SRDSA illustrates just how divorced from reality these legislators have become:
Collins/Grassley Press Release [a.k.a. myth]
GAO Report Findings [a.k.a. reality]
“To push back against the growing use of sue-and-settle litigation, the Sunshine for Regulatory Decrees and Settlements Act of 2015 reinforces the transparency and accountability protections built into the normal rulemaking process by federal laws and executive order”
“Of the  major rules EPA promulgated from May 31, 2008 to June 1, 2013, nine were issued following seven settlements in deadline lawsuits, all under the Clean Air Act [which is just one of seven environmental laws to permit deadline suits].”
“This tactic, used by federal agencies and like-minded special interest groups, circumvents the normal rulemaking process to impose new, burdensome regulations on businesses and communities.”
“[The Clean Air Act] provisions [subject to the deadline suits] have recurring deadlines requiring EPA to set standards and to periodically review—and revise as necessary—those standards. [EPA] sets these standards through the rulemaking process.”
“Unless a more specific statute governs, when EPA or any other federal agency promulgates a rule, whether or not in conjunction with a deadline suit, it generally follows procedures prescribed in the Administrative Procedures Act (APA). . . . . Many rules promulgated under the authority of the Clean Air Act do not follow the procedures prescribed in the APA, but rather follow similar but more specific procedures set forth in the act.”
“Sue-and-settle litigation is defined by closed-door negotiations between pro-regulatory special interest groups and complicit federal agencies, which result in consent decrees or settlement agreements that bind executive discretion.”
“The terms of the settlements in these deadline suits established a schedule to issue a statutorily required rule(s) or to issue a rule(s) unless EPA determined that doing so was not appropriate or necessary pursuant to the relevant statutory provision. None of the seven settlements included terms that finalized the substantive outcome of a rule.”
“The effect of settlements in deadline suits on EPA's rulemaking priorities is limited.”
“According to EPA officials, settlements in deadline suits primarily affect a single office within EPA—the Office of Air Quality Planning and Standards (OAQPS) . . . . OAQPS officials said that deadline suits affect the timing and order in which rules are issued but not which rules are issued.”
“Unlike the normal rulemaking process, potentially-affected parties – such as businesses and even the states – are often kept completely in the dark about the negotiations, and the resulting regulations can come as a complete surprise.”
“‘We’re giving more people a voice in the outcome,’ said Collins.”
“‘These tactics result in new federal regulations imposed on American businesses and ultimately, on American families, all without an adequate opportunity for the public to weigh in. This bill helps restore regulatory accountability by allowing for public scrutiny and comment on proposed federal regulations, and by making it easier for affected parties to take part in settlement negotiations,’ said Grassley.”
“The Clean Air Act requires EPA to solicit public comments on drafts of settlements. The nine major rules were Clean Air Act rules, and EPA solicited public comments on all of the drafts. EPA received between 1 and 19 comments on six of the settlements and no comments on one settlement.”
There’s hardly a statement in the Collins/Grassley press release that’s not directly refuted by GAO report, which was released just a few weeks prior. Nevertheless, Rep. Collins, Sen. Grassley, and their antiregulatory colleagues are unwilling or unable to abandon the sue-and-settle myth that is at the heart of the SRDSA. Perhaps they persist because it plays such a starring role in the broader conservative narrative regarding the U.S. regulatory system—that environmental groups and other public interest organizations have hijacked the system and are using it to unleash a torrent of regulatory mandates on entrepreneurs and job creators. Remarkably, they are able to cling to this narrative even though all of the empirical evidence that is available demonstrates clearly that regulated industry—and not the public interest community—dominates every critical point of the rulemaking process, from notice-and-comment to centralized review at the White House Office of Information and Regulatory Affairs (OIRA).
Undeterred, Republicans will no doubt continue trying to sell the public their antiregulatory narrative, since it provides them with the critical political cover they need to continue working on behalf of their corporate benefit factors to dismantle the social safety net on which all Americans depend. And if you believes that narrative, then the Republicans also have a bridge (or maybe a pipeline) they’d like