Republicans take aim at 'sue and settle' agreements

The Utility MACT rule, regional haze regulations, proposed endangered species protection for the lesser prairie chicken: All are the products of court settlement agreements between federal agencies and environmental groups.

Republicans have dubbed the practice "sue and settle," wherein outside groups sue a government agency and then negotiate a settlement that sets rulemaking requirements. This week, two House panels will hold hearings on the issue, as part of a broader effort to pass legislation requiring more transparency during the process.

The "Sunshine for Regulatory Decrees and Settlements Act" would force agencies to publish proposed consent decrees and settlement agreements for public comment before they are filed with the court. Sponsored by Sen. Chuck Grassley (R-Iowa) and Rep. Doug Collins (R-Ga.), the bill would also require agencies to report to Congress on their use of such agreements.

Republicans say it would help close a back door that environmentalists use to circumvent the rulemaking process, while Democrats and environmentalists argue that the lawsuits are a legitimate way to ensure agencies are following the law.

John Walke, the clean air and climate change director for the Natural Resources Defense Council, wrote in a recent blog post that the bill "is designed to obstruct enforcement of federal health, safety, environmental, financial and consumer protection laws." In his view, it would allow industry undue influence over court actions.


The two sides will no doubt air their opinions Wednesday, when a subpanel of the House Judiciary Committee will hold a hearing on the bill. A recent report from the U.S. Chamber of Commerce will also likely be part of the conversation. It estimates that U.S. EPA settled 60 cases between 2009 and 2012, leading to more than 100 regulations (E&E Daily, May 21).

The Subcommittee on Regulatory Reform, Commercial and Antitrust Law is the first panel to tackle H.R. 1493 this Congress; it made it through the House last year, only to die in the Senate.

That hearing will come one day after another House committee criticizes the "sue and settle" practice from the angle of local and tribal governments.

The Natural Resources Committee tomorrow will focus on the Endangered Species Act in a hearing titled "Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices."

In a statement, committee Chairman Doc Hastings (R-Wash.) argued that local governments -- rather than settlement-forced federal regulations -- are the best equipped to protect species.

"Those closest to the species know firsthand how to protect species better than distant bureaucrats and litigious groups who often hinder the ESA through lawsuits and closed-door settlements," he said. "This hearing will provide an opportunity to hear what is working well right now at the state, tribal, and local levels as opposed to ESA-related litigation that divert time and resources away from actual recovery efforts."

Lawmakers will hear from local representatives on an array of species conservation issues. For example, Tyler Powell, Oklahoma's deputy secretary of environment, will likely speak about the Interior Department's proposal to list the lesser prairie chicken as "threatened."

The listing proposal was made to satisfy the terms of settlement agreements between two environmental groups and the Fish and Wildlife Service. But state officials have argued they are in the best position to limit threats to the grayish-brown grouse, known for its odd mating dance.

The species' habitat has declined by about 84 percent, thanks to agriculture, wind energy development, petroleum production and infrastructure, according to federal scientists. Oklahoma officials want to enter voluntary agreements with stakeholders to limit threats to the species, rather than force such protections through federal rules.

In an interview with local newspaper Woodward News in February, Powell said the federal government should not intervene in protecting the prairie chicken.

"I believe it's critical for the U.S. Fish and Wildlife Service to allow this plan to be fully implemented and see the results we expect before any risk determination is made," he told the paper.

Government officials from Colorado and Wyoming will also testify tomorrow, along with Columbia River Intertribal Fish Commissioner Kathryn Brigham. Tribes in the Columbia River Basin have worked in recent years to restore salmon.

Schedule: The Judiciary Committee hearing is Wednesday, June 5, at 10 a.m. in 2141 Rayburn.

Witnesses: TBA.

Schedule: The Natural Resources Committee hearing is Tuesday, June 4, at 10 a.m. in 1324 Longworth.

Witnesses: Oklahoma Deputy Secretary of Environment Tyler Powell; Garfield County, Colo., Commissioner Tom Jankovsky; Steve Ferrell, policy director for wildlife and endangered species in Wyoming; and Columbia River Intertribal Fish Commissioner Kathryn Brigham.

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