House Looks at ‘Sue and Settle’

Republican leadership in the House of Representatives has scheduled floor action this week on H.R. 2279, the Reducing Excessive Deadline Obligations (REDO) Act. ‘Redo’ is an apt acronym for this worthy bill, which would afford Congress an opportunity to revise a decades-old mistake, and thereby strike at the heart of an insidious legal strategy known as “sue and settle.”

To be precise, H.R. 2279 would allow Congress to mitigate the ills caused by an overabundance of deadlines in environmental laws enacted during the 1970s. At the time, statutory deadlines, by which time federal agencies must execute their duties, were perceived as an innovation in Congressional oversight. In practice, however, they’ve wreaked havoc on the regulatory process.

For starters, the Environmental Protection Agency rarely meets its date-certain responsibilities. Since 1993, for example, 98 percent of EPA regulations (196 out of 200) pursuant to three core Clean Air Act provisions were promulgated after their statutory deadlines, by an average of 2,072 days late. Alas, such dilatory execution is characteristic of the agency.

You might wonder: How could missed deadlines cause harm? The answer is a function of another unfortunate legislative innovation dating to the disco era. At the behest of environmental litigation groups, Congress during the 1970s included in many regulatory laws a provision granting the public the right to sue EPA over the non-performance of non-discretionary duties. As a result, groups like Sierra Club are empowered to sue the agency in order to compel the agency to act on a past-due responsibility.

Because EPA is out of compliance with virtually all of its deadlines, it follows that establishing any deadline through litigation determines how EPA deploys its limited resources. Of course, giving priority among regulatory initiatives is no different than effectuating policy. To this end, impossible deadlines are conducive to a legal strategy known as “sue and settle.” The process starts when an environmental litigation group sues EPA over a missed deadline. Rather than contest the suit and defend the agency’s discretion, EPA immediately enters into settlement negotiations. Due to a revolving door between green groups and the EPA, parties to these suits often used to be colleagues. Thus, unelected bureaucrats and environmental special interests render policy by establishing agency priorities, far removed from voter accountability. In fact, most of EPA’s regulatory responsibilities pursuant to the Clean Air Act are dictated by sue and settle litigation.

EPA’s inability to meet its duties in a timely fashion is largely a consequence of Congressional mismanagement, rather than agency indolence. Simply put, Congress added too many deadlines, and not enough appropriations to meet them.

H.R. 2279, the REDO act, would help correct this mistake. Specifically, the bill would amend the Resource Conservation and Recovery Act to make manageable the law’s numerous deadlines. Indeed, EPA has been behind on this law’s deadlines since it was enacted in 1976. To wit, the agency published criteria for classifying solid waste disposal facilities nearly 2 years tardy, and key state guidelines were promulgated almost 15 months late. In 1984 amendments to the act, Congress added nearly 60 more deadlines, of which the agency later conceded it would fail to achieve a third. Compounding matters greatly, a provision of the 1976 amendments requires EPA to review and, if necessary revise, all of the act’s regulations every three years. As a result, the agency is perpetually past due.

H.R. 2279 would amend the Resource Conservation and Recovery Act such that regulatory reviews are conducted at the EPA Administrator’s discretion, rather than every three years. Thus, the REDO act would relieve EPA of a significant regulatory burden, one that the agency already has failed to meet. In short, H.R. 2279 is a codification of common sense. House Democrats nonetheless oppose the bill on behalf environmental special interests. Green groups, for their part, seek to defeat the REDO act because it would upset their “sue and settle” legal strategy by depriving them of overdue deadlines, the basis of their agency forcing litigation.

The REDO act is a welcome start. Other environmental statutes are in dire need of a similar correction course.