Sue and Settle: Regulating Behind Closed Doors

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Executive Summary | List of Rules and Agency Actions | List of Recommendations

What Is Sue and Settle?

Sue and settle occurs when an agency intentionally relinquishes its statutory discretion by accepting lawsuits from outside groups that effectively dictate the priorities and duties of the agency through legally binding, court-approved settlements negotiated behind closed doors—with no participation by other affected parties or the public.

As a result of the sue and settle process, the agency intentionally transforms itself from an independent actor that has discretion to perform its duties in a manner best serving the public interest into an actor subservient to the binding terms of settlement agreements, which includes using congressionally appropriated funds to achieve the demands of specific outside groups. This process also allows agencies to avoid the normal protections built into the rulemaking process—review by the Office of Management and Budget and the public, and compliance with executive orders—at the critical moment when the agency’s new obligation is created.

What Is the Sue and Settle Process?

Environmental advocacy group sues federal agency to issue regulations by a specific deadline.
Environmental advocacy group and federal agency work out an agreement.*
*Conducted behind closed doors.
Draft consent decree or settlement agreement is lodged with the court.
Under some laws the federal agency invites and receives public comments on the decree or agreement.*
*Too little, too late: the damage has been done.
Court finalizes the decree or agreement.*
*It generally does not matter to courts if the decree or agreement is not required or authorized by statute.