But Wait, There’s Less! The GOP Has a ‘Sue and Settle’ Bill They Would Like to Sell You

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:

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