'Sue and settle' becoming ‘significant' - Beckley, Bluefield & Lewisburg News, Weather, Sports

'Sue and settle' becoming ‘significant'

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So-called "sue and settle" tactics being used by special interest groups to shape regulatory decisions, particularly environmental law, are a "significant issue," West Virginia Chamber of Commerce President Steve Robert says.

Roberts said the sue and settle process "makes it more challenging for employers to invest, to innovate and move forward."

"That's not to say, by the way, that we want to eliminate all lawsuits ... or take away the right to sue," he said. "That's not the case at all. But it sometimes helps to call attention to the tactics of skillful members of the plaintiffs' bar who have found a way to wring additional cash out of people who are trying to move ahead, to innovate and be entrepreneurs and create jobs. 

"Calling attention to the problem is in itself helpful."

Earlier this year the U.S. Chamber of Commerce's Institute for Legal Reform took an in-depth look at the sue and settle process "because of the growing number of complaints by the business community that it was being entirely shut out of regulatory decisions by key federal agencies."

The U.S. Chamber defines sue and settle as occurring 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.

"While the U.S. Environmental Protection Agency (EPA) and the Fish and Wildlife Service have been leaders in settling — rather than defending — cases brought by advocacy groups, other agencies, including the U.S. Forest Service, the Bureau of Land Management, the National Park Service, the Army Corps of Engineers, the U.S. Department of Agriculture and the U.S. Department of Commerce have also agreed to this tactic," U.S. Chamber officials noted in an executive summary that accompanied the report. "... under this sue and settle process, EPA chose at some point not to defend itself in lawsuits brought by special interest advocacy groups at least 60 times between 2009 and 2012. 

"In each case, it agreed to settlements on terms favorable to those groups. These settlements directly resulted in EPA agreeing to publish more than 100 new regulations, many of which impose compliance costs in the tens of millions and even billions of dollars."

Roberts said in many cases, groups sue "knowing it's more attractive to settle the lawsuit than go through the risk of trying the lawsuit."

He also said the practice is particularly concerning because West Virginia is, to some extent, "ground zero" for regulatory efforts targeting energy-producing states.

"The same minds that conceived (the Obama administration's) Affordable Care Act website conceived the U.S. EPA's war on domestic energy," Roberts said. "We're reasonable people. we all want to breathe clean air and have clean water, but energy is a hugely important component of our well-being, so some balance is needed. Sometimes those issues are competing."

He said the sue and settle tactics "are problematic."

"Often what's happening in West Virginia, industry is prevailing," he said. "But after more costs, more litigation … means they have less ability to grow, to expand and to hire people."