Sue and Settle: Demonizing the Environmental Citizen Suit

47 Pages Posted: 12 Aug 2014 Last revised: 26 Jun 2023

Date Written: June 14, 2014

Abstract

The federal environmental statutes include many provisions that require agencies to issue regulations or take actions by a specific date. When agencies fail to meet those deadlines, the statutes authorize citizens to sue the agencies to force the agencies to take the actions required by law. When the agencies are sued, they frequently settle the lawsuits and agree to take the actions required by law within a new time frame that is agreeable to the challengers and the agencies. In the spring of 2013, industry groups and States began a concerted lobbying effort to oppose citizen enforcement of the federal environmental laws. The United States Chamber of Commerce and lobbyists for States created a catch phrase - “sue and settle” - to demonize citizen enforcement and to criticize the federal government for settling lawsuits brought by citizens groups.

In a 2013 report, the Chamber alleged that the federal government, by settling lawsuits brought by citizens groups, was colluding with those groups and excluding other affected parties in order to reallocate the agencies’ priorities and obligations. Congress has also taken an interest in this issue. In the last two sessions of Congress, legislators have introduced a “Sunshine for Regulatory Decrees and Settlements Act” that would broaden intervention in lawsuits involving federal agencies, establish cumbersome settlement procedures, create a more formal notice and comment process for settlements, require agencies to provide more explanation of, and justification for, settlements, and change the rules for judicial supervision and review of settlements.

Although the lawsuits cited by critics as “sue and settle” lawsuits rarely involve the negotiation of substantive changes to final rules, the reforms suggested by the Chamber and Congress are much more severe than the reforms suggested by academics decades ago to address “rulemaking settlements” between agencies and industries that addressed substantive changes. The federal environmental laws establish a central role for citizens in enforcement of the laws and citizens will continue to sue EPA and other federal agencies when the agencies fail to meet statutory deadlines or carry out their duties under the laws, regardless of whether Congress adopts the reforms suggested by the Chamber or included in the legislative proposals. Those reforms will simply make settlement of citizen suits much more difficult, resulting in a longer litigation process, which will impose higher costs on the government. In addition, since the cases are, for the most part, clear losers for the agencies, longer litigation will lead to higher awards of attorneys fees. More significantly, the longer litigation will delay the inevitable agency action and all of its environmental and other benefits for many years. To the extent that reforms are necessary, this article proposes much more modest reforms.

Suggested Citation

Johnson, Stephen Martin, Sue and Settle: Demonizing the Environmental Citizen Suit (June 14, 2014). 37 SEATTLE L. REV. 891 (2014), Available at SSRN: https://ssrn.com/abstract=2478866

Stephen Martin Johnson (Contact Author)

Mercer University Law School ( email )

1021 Georgia Avenue
Macon, GA 31207-0001
United States
(478) 301-2192 (Phone)
(478) 301-2101 (Fax)

HOME PAGE: http://www.envirolawteachers.com

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