The epa has ended a Practice known as “sue and settle” by which regulations could be imposed by a backdoor method that lacked the usual transparency required for new rules by government agencies, according to the Washington Examiner. The practice has cost the private industry $68 billion since 2005 and has imposed an annual cost of $26 billion. Moreover, the practice has caused millions of hours of paperwork and red tape to be mandated on the private sector.

How ‘sue and settle’ works

When a government agency proposes a new rule or regulation, it publishes it as a proposal first, allowing for public comment and feedback before it goes into effect.

Sue and settle” bypasses that process and caused the regulation to be enacted without the usual public comment and transparency.

A private group, say an environmental organization, will sue an agency like the EPA, claiming that it is not fulfilling its mandate under the law. Instead of fighting the suit in court, the government agency agrees to settle by imposing a rule or regulation with a legally binding deadline. The process is done behind closed doors in secret. As a bonus, the government agency agrees to pay the legal fees of the plaintiff. In other words, “sue and settle” is not only a way to increase the power of government, but it also enriches Trial Lawyers who are involved in the process.

If a more corrupt practice has been in existence in the United States, one has not heard of it.

Legislation would be a more permanent solution

Because of the decision by the EPA to end “sue and settle” environmental groups that want to impose their will through the courts will have to fight it out in the legal system, spending money, having their attempts exposed to public scrutiny and content.

The possibility of losing will now be every present, especially as the Trump administration moved to appoint more federal judges. The power of environmental groups to advance public policy through litigation will be significantly inhibited.

Unfortunately what the EPA has decided could be undecided after a change of administrations.

A President Elizabeth Warren or President Kamala Harris would be sure to reinstitute “sue and settle” and would likely even double down on the practice.

A bill that would end the practices of regulation by litigation across the federal government has been introduced in both houses of Congress. The Sunshine for Regulations and Regulatory Decrees and Settlements Act would include much of the EPA decision and codify it as a matter of law. The bill is still pending as of this writing.