The Biden administration’s reluctance to hold the lease sales for oil in the Gulf of Mexico, as stipulated by the Inflation Reduction Act, is a part of a broader trend undermining constitutional order. Its tactics could set a perilous precedent, endangering future adherence to the rule of law.
One such tactic, known as “sue and settle,” allows influential interest groups to effectively use the court system as an instrument for shaping environmental law without the mandate of the Congress. These groups file lawsuits against cooperative administrative agencies, claiming they flouted the law. Instead of dismissing these possibly baseless claims, the agency in question opts to settle, using this settlement agreement to circumvent possible court-imposed limits on its power.
The agency, through this settlement, frequently commits to tasks that could either exceed its jurisdiction or go against extant legislation – all the while evading the transparency of the notice and comment rulemaking process required by the Administrative Procedure Act.
The Trump administration and its Bureau of Ocean Energy Management utilized this exact tactic in August, entering a settlement agreement in Sierra Club v. National Marine Fisheries Service. The administration settled the case by agreeing to restrict offshore drilling to protect whales in the region, a move aligned with its policy preferences.
The Administrative Procedure Act (APA) provides provisions to challenge such tactics. In the instance of the Gulf, it can be said that the BOEM is breaching directives provided by Congress. Procedurally, even if the administration’s agencies held the authority to impose these specific restrictions on lease sales, they must engage in rulemaking with public notice and comment to carry these out correctly.
The case is Louisiana v. Haaland, 5th Cir., No. 23-30666, 11/14/23. By invalidating the agreement between the administration and the Sierra Club, leasing can continue as per Congressional directives while rogue agencies using unlawful channels can be kept in check.
Author of the piece is Donald J. Kochan, a professor of law at George Mason University and executive director of the Law and Economics Center at Antonin Scalia Law School, who also asserts a similar view.