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Abstract

In the spring of 2013, industry groups and states began a concerted lobbying effort to oppose citizen enforcement of the federal environmental laws. The United States Chamber of Commerce and lobbyists for states created a catch-phrase—“sue and settle”—to demonize citizen enforcement and the federal government’s practice of settling lawsuits it is destined to lose in court. The Chamber alleged that the federal government, by settling lawsuits brought by citizens groups rather than defending them in court, was colluding with those non-governmental organizations and excluding other affected parties to reallocate the agencies’ priorities and obligations. Federal environmental laws establish a central role for citizens in enforcement of the laws, and citizens will continue to sue the EPA and other federal agencies when the agencies fail to meet statutory deadlines or carry out their duties under the laws, regardless of whether Congress adopts the proposed reforms. The reforms will simply make settlement of those lawsuits much more difficult, resulting in a longer litigation process that imposes higher costs on the government. To the extent that reforms are necessary, much more modest proposals would suffice. This Article considers the features and history of rulemaking settlement controversies and proposes modest, sensible proposals for systemic improvement.