![]() “Consent decrees” in particular provide opportunities for public comments to the settling agencies under many environmental statutes (like the Clean Air Act and Superfund regulations) before being lodged in court. Wrong: No settlement agreement or consent decree dispenses with any legally required public participation in any rulemaking process. and minimize public participation in the rulemaking process,” Wrong: settlement agreements and consent decrees are public documents, fully available for Congressional and public review.Ĭlaim: “. ![]() Let me now parse the claims in this passage to show how wrong and misplaced they are.Ĭlaim: “ The Obama Administration regularly relies on 'sue-and-settle' tactics to avoid Congressional scrutiny….” An administration that defied congressionally enacted deadlines, even when sued to comply with them, would be thumbing its nose at Congress-intruding on congressional prerogatives-not the other way around. Cantor surely does not want the agency to violate a duly enacted law. ![]() Cantor is arguing that the Executive Branch should defend in court to the bitter end its failure to comply with a statutory deadline set by Congress. If Congress does not like the deadline, it can change it. But the deadline is the law, and Mr. The next striking thing is the basic irony that Mr. Rhetoric, Assertion, Rhetoric, Assertion. It’s like watching a bad junior high school tennis match between players named Rhetoric and Assertion. The first thing one notices when reading this passage is there is not a shred of evidence to support the charges. Furthermore, these settlement agreements can be legally binding on future Administrations, raising serious constitutional concerns. These settlement agreements are the product of closed-door negotiations between the EPA and environmental groups – states, industry, stakeholders, and the public have no voice in the process. Rather than fighting the lawsuit, EPA officials – many of whom used to work for the very groups that are now suing – will make enormous concessions in a settlement agreement that requires the agency to take a particular action. In practice, groups like the Sierra Club and the Natural Resources Defense Council will sue the EPA for failing to meet a nondiscretionary duty, usually a statutory deadline. The Obama Administration regularly relies on “sue-and-settle” tactics to avoid Congressional scrutiny and minimize public participation in the rulemaking process, while fast tracking the priorities of environmental groups. Here is the cursory indictment passage from the Cantor report : In this way they hope to undermine and impede the laws themselves. So they have concluded they must resort to inventing an alleged controversy surrounding the actual enforcement of those safeguards. These opponents cannot directly (or easily) attack federal health and safety laws that enjoy popular support. This Republican phantom in turn serves as a bogeyman-strawman that fuels a political controversy of their own creation.īut it turns out that the real agenda for these Republican critics is to block enforcement of federal laws, especially health and safety laws, that some Tea Party politicians and corporations oppose. Republicans have conjured up a phantom practice they call “sue-and-settle,” in which federal agencies and outside plaintiffs allegedly conspire to settle lawsuits under improper circumstances, settling on terms that trample the valid procedural and/or substantive interests of other parties, especially industry. What motivated me to write this post was the decision by Cantor’s office to drag my organization, the Natural Resources Defense Council, through the muck of partisan rancor that characterizes the report. The office of House Majority Leader Eric Cantor just released a partisan report attacking the Obama administration as “The Imperial Presidency.”
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