Are “sue and settle” tactics used by regulatory agencies something we need to worry about? Not according to Daniel Walters, who argues in a recent RegBlog essay that the practice of agencies collusively settling deadline lawsuits “almost never occurs” and that, to the extent it does, it contributes “to the democratic character of what is otherwise a very shadowy forum.” Such claims are only plausible under the sort of logical positivism on which so much academic writing about regulatory topics is premised, in which the only “facts” about which we can speak (or that we care about) are those that can be found in published literature.
People who have spent their careers as environmental practitioners know that deadline lawsuits and settlements have largely dominated the U.S. Environmental Protection Agency’s (EPA) regulatory agenda for the last several decades. Most of us have also experienced the “sue and settle” game first-hand, sometimes from both sides, and can explain what’s wrong with it. This issue should not distract us, however, from the much greater opportunities that currently exist to improve the regulatory system.