‘Sue And Settle’ Looks To Some Like Crony Democracy… And Under Biden’s Lawfaring Eco-Politics, It’s Back
22nd February 2024
Administration critics say these moves reflect the resurgence of a practice embraced by the Obama administration and rejected during Donald Trump’s presidency: “sue and settle.” The tactic is simple: An advocacy group sues a federal agency for failing to enforce laws or regulations. Agency officials and the plaintiffs then come to a private agreement and that deal is ratified by the courts via a binding consent decree.
The practice is common at every level of government. New York City, for example, is obligated to house and feed tens of thousands of migrants because of a consent decree it entered into to settle a 1979 lawsuit brought by advocates for the homeless. But it is most prevalent in the environmental field, where well-funded groups commonly sue the Environmental Protection Agency or the Bureau of Land Management within the Department of the Interior alleging failure to enforce provisions of the Clean Air Act or regulations regarding federal leases for energy production.
Although such consent decrees do not have the force of laws passed by Congress or regulations issued by the government that have gone through formal review and allow for public comment, they set the rules of the road. Critics say it has allowed government to advance policy goals that cannot be achieved through normal democratic channels.
The distinguishing characteristic of Democrats is that they avoid anything that smacks of actual democracy.