Inside D.C.

Sue-and-settle stinks

As the cherry blossoms begin to fade, their sweet scent is being replaced by the first whiffs of panic among the activist gang.  Industry lobbyists pick up on the odor first, like wild animals smelling feat in cornered prey.  The panic is engendered by a reading of the calendar – there are only eight months left to reach their activist goals, so far unattainable in the nearly eight years of what they dreamed would be the most hospitable White House in modern memory.

A result of the panic is affirmation of the old saw, “desperate moves by desperate men,” or in modern DC political parlance, “sue-and-settle.”  This is the strategy of the activist – often abetted by a sympathetic bureaucracy whose hands are tied by the Administrative Procedures Act (APA) – under which a gaggle of activist groups, frustrated that public sentiment/opinion trumps their particular brand of zealotry, sues an agency over a particular decision or rulemaking, the goal being an agency/department offer to settle the suit out of court or a court order to negotiate a settlement, i.e. give them something and get out of my courtroom.

EPA is the poster child for sue-and-settle cases. It’s almost automatic that if the agency through fiat or rulemaking does not agree an activist agenda, or a decision does not go far enough because, darn it, the law gets in the way, environmental groups file a lawsuit quicker than you can say “WOTUS.”  Industry deplores the practice; Capitol Hill has taken notice of the phenomenon, but has done little to curb the practice.

A recent case hits closer to home.  Last month, the National Pork Producers Council (NPPC) demanded USDA defend, i.e. not resort to “sue-and-settle,” the department’s decision in an action brought by the Humane Society of the U.S. (HSUS).  Here’s NPPC’s description of the situation:

“NPPC sold to the Pork Board in 2006 “The Other White Meat®” slogan and pork chop logo for about $35 million…The sale was an arms-length transaction, with a lengthy negotiation in which both parties were represented by legal counsel, and USDA, which oversees the federal Pork Checkoff program administered by the Pork Board, approved the purchase.

“The Humane Society of the United States, a lone Iowa farmer and the Iowa Citizens for Community Improvement in 2012 filed a lawsuit against USDA, seeking to have the sale rescinded. Initially, USDA defended the lawsuit, and a U.S. District Court dismissed it…but a federal appeals court in August 2015 reinstated the suit.  But before any court proceedings…USDA inexplicably changed course and entered into settlement talks with HSUS.  According to NPPC President John Weber and CEO Neil Dierks, who met with USDA’s general counsel and reiterated the pork industry’s objection to any settlement, there is no indication where the agency stands on the case.  “We’re concerned that even though USDA has a very strong legal position, it isn’t defending a contract it approved,” said Weber. “We’re concerned that it already has thrown in the towel.”

The Center for Food Safety (CFS), which never met a food industry technology it didn’t want to demonize, is a perennial judicial gadfly, suing the federal government at the drop of a hat.  CFI is in federal court to order FDA to rescind its November, 2015, approval of a genetically modified Atlantic salmon that grows to market weight in half the time.  Throughout the fish’s nearly 16-year journey through the FDA approval system and interagency review, not to mention two separate environmental assessments of the fish, CFS failed to stop the agency.  The self-styled consumer group has a cast of characters signed on to the action, and today I received an email asking for my financial support for CFS and its actions.

The list of unfinished activist business destined to become court filings in hopes of a “win” of some sort by the time the Obama moving van pulls out of the White House will grow exponentially over the next several months.  And while “sue-and-settle” may be a time and money-saver for the beleaguered bureaucrat and his army of government lawyers, and while it allows activist groups to save face on issues on which they’ve lost — all the while giving them a hook on which to hang a fundraising campaign — it’s an insult to the regulatory process.  No one likes notice-of-comment/rulemaking, but it’s a system that works.  You need to do your homework and assemble your evidence to make your case — finding as many like-minded folks as you can along the way — and true, sometimes it’s a crap shoot over which way the agency will go, but in the end it’s a “y’all come” kind of process.   And let us not forget:  “Sue-and-settle” is a very expensive backbreaker for the government and for industry.  While activist group lawyers are working on their activist group salary or donating their time pro bono, neither government nor industry has that luxury.

Maybe part of President Obama’s legacy should be an executive order ending “sue-and-settle and reinvigorating the participatory process?  Just a wild thought…