Forget executive orders: "Consent decrees" are the new end run around Congress -- at least when it comes to energy policy. When the current administration wishes to expand its environmental regulatory program, it -- in effect -- sues itself for more power. It's a process called "sue-and-settle" and the resulting "consent decrees" are inadvertent court orders to regulatory agencies to accrue extralegal authority.
Never heard of this practice? Neither had I -- until Congressman James Lankford spelled it out for me in a green room interview at our National Policy Summit on Energy and Federalism. From the transcript:
In the past three years, there've been 29 different 'citizen suits' filed against the Environmental Protection Agency to force them into ... a 'consent decree.' A 'consent decree' is not something new; there've been citizen suits since the 1970s, since the first Clean Air Act. But what's different now is this administration wants to get new policy and wants to get new regulations in a regulatory scheme, but can't get it through the legislative branch. So they will contact the Sierra Club or Wild Earth Guardians or some other environmental group. They'll work with them to sue the federal government. Then, the EPA will say, 'Instead of having a long, protracted lawsuit, we'll just settle this out of court.' The EPA leaders will sit down with the Sierra Club, they'll work out an agreement that will expand the power of the EPA and they will take that to a federal judge and say, 'Two parties have reached a consent. Will you sign off on a consent decree?' The judge is not evaluating whether this is a good idea or a bad idea; he's only evaluating whether the two parties agreed on it. Once they say, 'yes, we have,' he signs off on it and then the EPA turns around to energy companies and states and says, 'A federal judge is forcing us to do this' when a federal judge isn't forcing them to do it. It's an agreement they've made.
From a separation of powers standpoint, the process is more than mildly problematic. As Lankford put it, "You've got the judicial branch now forcing the executive branch to do something that is contrary to what the legislative branch wrote."
Yet, that's arguably not even the most troubling aspect of the decrees.
"The worst part of this is ... the states and the parties that are affected are excluded from these agreements," Lankford said. "You've got a back room deal in its ... clearest form and a state that will be affected by it never has any voice in it at all."
To address the proliferation of essentially-administration-initiated consent decrees, Lankford advocates the resurfacing of a document called the "Meese Memorandum" -- a document authored by former Reagan Attorney General Ed Meese that outlines important parameters for consent decrees. The Reagan and Bush I administrations voluntarily operated within those parameters; future administrations could do the same.