Is it time to use a “sue and settle” strategy?

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Wisconsin warned boaters and swimmers that there’s blue-green algae in their lakes. Toledo, Ohio’s recent “don’t-drink-the-water” was a national disgrace. People who touch or ingest water containing it (microcystin toxin) can become sick. Certainly not a climate in which we can grow boating. Is it time, then, for the marine industry to take a page from the environmental activists’ playbook and study the “sue and settle” strategy?

Environmental groups have been using a “sue and settle” litigation tactic for years. They’ve successfully forced federal agencies to write regulatory policies, often word for word, the way the groups want and frequently bypass proper rulemaking procedures. Agencies include the Environmental Protection Agency and Fish and Wildlife Service, among others.

Here’s how it works, according to Ann Norman, senior research fellow at the National Center for Policy Analysis. There are 20 U.S. statutes containing a "citizen suit" provision that allows citizens to file suit against a federal agency when that agency has failed to carry out a non-discretionary duty by a prescribed deadline. Of particular interest to us, this includes the Clean Water Act, the Endangered Species Act and the Safe Drinking Water Act, among 17 others. And because federal agency rulemaking is notoriously behind schedule, every missed deadline provides an opportunity for litigation, Norman writes. The EPA has been a prime target.

Norman notes that citizen suits are supposed to be aimed at non-discretionary duties, meaning the plaintiffs demand the agency to do something the law requires. But the fact is that sue-and-settle has subtly incorporated discretionary duties into settlements. And settlements are where it’s at.

After some environmental group files suit, say, against the EPA over a missed deadline, the parties then work out a settlement or consent decree between themselves. This process effectively lets the plaintiffs work out a rulemaking plan with the agency without involving third parties. Sue-and-settle is a strategy of choice because it’s very difficult for industries or states to intervene in these lawsuits. It’s also possible those affected by it don’t even know it until after it’s settled.

Then there’s money — lots of money. The fact is plaintiffs are often compensated for their attorneys' fees. Talk about an incentive to sue. Norman cites an example of the Equal Access To Justice Act that allows litigants who successfully sue to get their attorneys’ fees and court costs. Moreover, consent decree settlements often stipulate that the agency will cover the plaintiff’s legal fees.Why not file a lawsuit, if someone else will pay for it, says Norman.

And, not surprisingly, plaintiffs are happy to have taxpayers pick up their legal tabs. A U.S. Chamber of Commerce report found attorneys’ fees were awarded in at least 65 percent of the sue-and-settle cases it identified from 2009-2012. From 2003-2010, the federal government paid $14.2 million out of its judgment fund (a fund that covers money judgments against the U.S.) to plaintiffs in EPA-related cases, according to the General Accounting Office. National environmental groups received the largest share, taking in 46 percent of the cash. Earthjustice has reportedly collected $4,655,425.60 in legal fees, the Sierra Club $966,687.34 and the Natural Resources Defense Council picked up $252,004.87.

Similarly, Norman’s research found that the U.S. Fish and Wildlife Service paid more than $21 million in attorney fees out of the judgment fund to cover the costs of Endangered Species Act litigation from March 2001 to September 2010 and it paid $1.5 million more from its own appropriations.

Until there is reform, Norman contends, interest groups will continue using litigation as a tactic to direct agency action and circumvent standard rulemaking procedures. Sue-and-settle has proven a valuable tool for such groups to, quite literally, write regulatory policy.

This brings me back to the subject of the widespread algae blooms boating families face on so many of our waterways. While I am certainly not an attorney, it seems possible there could be a basis for a sue-and-settle strategy based on the Clean Water Act or the Safe Drinking Water Act for failure to make rules concerning the following kind of water pollution:

It’s been reported that last spring, a diverse coalition of Great Lakes groups predicted the kind of drinking-water threat Toledo experienced. They called on the Michigan Department of Environmental Quality to end the application of manure on frozen or snow-covered ground as an allowable practice of permitted Concentrated Animal Feeding Operations. The coalition cautioned that when snow melts or ground thaws, this common practice can result in runoff of phosphorus-loaded waste that will pollute water supplies like Lake Erie. Reports by the International Joint Commission in February and the Ohio Lake Erie Phosphorus Task Force in 2013 also advocated prohibiting this practice.

Similarly, the ethanol debacle in this country has added millions of acres of corn, a crop which requires one of the highest rates of fertilizer. It results in phosphorus-laden runoff into the waterways and is believed to be the single largest contributor to the algae problems from the Great Lakes to the Gulf of Mexico.

Is it a total failure of agencies like the EPA to address such sources of water pollution under some applicable rulemaking timetable? Is it time to thoroughly investigate a possible sue-and-settle strategy to protect boating’s interests? It seems to be worth a look.