Regulate Now, Obey the Law Later

A few posts ago I introduced “citizen suits”—brought by private parties, usually advocacy organizations, in a capacity of “private attorneys general” against the government to make it do something—as an example of the derangement of our administrative and constitutional law. Here’s a bit more on the real-world aspects of the phenomenon, and a few more thoughts:

A ton of these cases are “deadline” suits. Environmental and, increasingly, many other statutes contain countless provisions saying that the administrator or agency “shall” regulate this, that, or the other thing by date “x.” More often than not, the agency misses the deadline, and the Association of Irritated Residents (an actual group) or some such outfit strolls into court and demands compliance. Agencies rarely fight these cases. One, they usually have no legal defense. Two, even if they could think of one, they may have invited or otherwise welcome the suit. Issuing the rule in the ordinary fashion (through notice and comment) would take a lot of time, or it might get some constituency or members of Congress upset. All that goes away once they’re under a court order. So the parties settle and get a court to stamp the order. It may take only a few months from “notice of intent to sue” to settlement. You can’t write a complicated rule in that time, meaning the fix was in from the get-go.

The U.S. Chamber of Commerce calls the practice “sue and settle,” and has produced a very informative report on the practice. The Chamber authors found 71 such cases between 2009 and 2012. Tracking Clean Air Act cases (which are easiest to find because proposed settlements have to be published in the Federal Register) back to 1997, the authors found 163 cases. Well over 100 rules, many very expensive, can be traced to such settlements: boiler rules, regional haze rules, Chesapeake Bay water rules, etc. We’re talking many, many billions of dollars.

What do we make of this? To a large extent, it depends on your baseline. You could say, “Where do these people get off, imposing costs like that”? But you could also say, “They’re not imposing anything that the law did not already command.” We can’t have agencies ignore unmistakable congressional commands and non-discretionary duties; thank goodness someone is holding them to account. From that perspective, the danger here may actually be (collusive) under-enforcement: they may be settling the statute out from under us.

In a recent, very thoughtful working paper cleverly entitled “The Law of ‘Not Now,’” Cass Sunstein and Adrian Vermeule provide a useful way to think about these issues. Regulatory agencies, they note, may have a bunch of good reasons to say, “not now”: resource constraints, regulatory priorities, lack of information, concerns over the economy, and so on. You want to give them plenty of room for those sorts of calculations; you most certainly do not want some district court chasing them around. But you also don’t want agencies to shirk and to put entire statutes out of operation through sheer delay; so there should be some legal redress in such situations. Sunstein & Vermeule come up with plausible rules (standards, really) for an administrative common law of “not now.” But (they write) none of that applies when the agency misses a deadline for a duty to regulate. Presumably, Congress’s point in imposing the deadline was to put all the usual reasons for inaction out of operation. So, no excuses.

It’s very hard to quarrel with that point: we can’t have agencies re-write calendar days in a statute. The glitch (and in fairness, this point is beyond the scope of the authors’ paper): as noted, there are hundreds of deadlines, and most of them are written in order to be missed. That way Congress gets to yell at the procrastinating bureaucrats and its irritated constituents get to sue the agency. And in picking and choosing which deadlines to enforce, they do what they’re not supposed to be doing: imposing their private preference order on the agency.

That’s a very big problem if you think of it in terms of the rule of law. It’s not a big problem if you think of it as not law at all, only interest group politics. The function served by appeals to “law” in this context is to block any consideration of consequences. Any time you note that this isn’t a sensible way to run a complicated regulatory system, the reply is that the law must be obeyed.

It’s this sordid mix of interest group politics and disembodied notions of “law” that drives the entire administrative state. And like I said: I can’t think of a practical way out.