Congress has ceded far, far too much legislative power to Administration agencies like the EPA. The only check that exists for that power is process -- regulators have to go through fairly elaborate and lengthy steps, including several full stops to publish draft rules and collect public comment. A lot of garbage gets through this process, but at least the worst can be halted by a public or Congressional outcry to draft rules.
But like most government officials, regulators resent having any kind of check on their power. Just like police look for ways to conduct searches without warrants, and even the President looks for ways to rule without Congress, the EPA wants to regulate unfettered by public comment process.
The EPA has found a clever and totally scary way around this. In short, they collude with a friendly environmental group which sues the EPA seeking certain rules that the EPA believes to be too controversial to survive the regulatory process. The EPA settles with the friendly group, and a consent decree is issued imposing the new rules, entirely bypassing any rules-making or public comment process. The EPA then pretends that they were "forced" into these new rules, and as a kicker, the taxpayer funds the whole thing by making large payoffs to the environmental group who initiated the suit part of the settlement. Larry Bell describes the process:
“Sue and settle “ practices, sometimes referred to as “friendly lawsuits”, are cozy deals through which far-left radical environmental groups file lawsuits against federal agencies wherein court-ordered “consent decrees” are issued based upon a prearranged settlement agreement they collaboratively craft together in advance behind closed doors. Then, rather than allowing the entire process to play out, the agency being sued settles the lawsuit by agreeing to move forward with the requested action both they and the litigants want.
And who pays for this litigation? All-too-often we taxpayers are put on the hook for legal fees of both colluding parties. According to a 2011 GAO report, this amounted to millions of dollars awarded to environmental organizations for EPA litigations between 1995 and 2010. Three “Big Green” groups received 41% of this payback, with Earthjustice accounting for 30 percent ($4,655,425). Two other organizations with histories of lobbying for regulations EPA wants while also receiving agency funding are the American Lung Association (ALA) and the Sierra Club.
In addition, the Department of Justice forked over at least $43 million of our money defending EPA in court between 1998 and 2010. This didn’t include money spent by EPA for their legal costs in connection with those rip-offs because EPA doesn’t keep track of their attorney’s time on a case-by-case basis.
The U.S. Chamber of Commerce has concluded that Sue and Settle rulemaking is responsible for many of EPA’s “most controversial, economically significant regulations that have plagued the business community for the past few years”. Included are regulations on power plants, refineries, mining operations, cement plants, chemical manufacturers, and a host of other industries. Such consent decree-based rulemaking enables EPA to argue to Congress: “The court made us do it.”