The Department of Justice has recommended a settlement regarding litigation related to seismic exploration in the Gulf of Mexico. Although there are no actions that can be undertaken with respect to the aforementioned transaction it triggers a comment on several administrative actions which could be taken immediately to address the “sue and settle” issues of the future.
Historically, on occassion DOJ has provided an opportunity for public participation when the government was a plaintiff. The DOJ, as a condition for settlement, should provide the same opportunity for public involvement as when the government is a defendant.
In a number of instances the effected agency soliticed public comments in their own right pursuant to particular public comment requirements in their organic statutes which could serve as a template for addressing government-wide “sue and settle” issues. Public comment on proposed antitrust settlements is a routine event. Nearly a decade ago, CRE prepared a draft Executive Order which would have required public comment on “sue and settle” settlements.
The Administration could announce a policy requiring public comment on proposed settlements consistent with past practices and statutes requiring public comment insofar both actions are sanctioned by existing law. Such a policy would reduce grandstanding by “sue and settle” plaintiffs whose exaggerated public statements could dictate their private statements during the implementation of a settlement. In addition the policy could require OIRA review of the settlement as was the case some thirty years ago.
In that the Ninth Circuit has just refused to approve, in part as a result of the opposition of an industry defendant-intervenor, a “sue and settle” consent decree approved by the lower court, now is the time to implement easily implemented adminstrative reforms. The aforementioned decision coupled with a recent decision by the Alaskan District court which summarily supported the USG on comparable charges leads one to wonder why the Department of Justice went into a settlement mode immediately (they never even responded to the complaint).
We suspect that the federal agencies continue to be lawyered up on litigation, meaning federal attorneys are usually looking for the most immediate way to resolve a conflict irrespective of its overall policy implications–what is needed is the presence of policy entrepreneurs to participate in settlement negotiations.
The above actions would be in accord with both the Obama Administration’s admirable stance on transparency and the Reagan Administration’s policy on government-wide venting of settlements.
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