If it looks like a duck and quacks like a duck, it just might be a duck.
Here in the Sportsman’s Paradise, most of us can spot a duck when we see one. Well, I see a duck flying right at us and I think it flew from Washington, D.C.
The fowl heading our way is the growing trend of special interest groups using lawsuits to hijack governmental entities to do their dirty work for them. While this trend may seem relatively new here in Louisiana, it is a page out of the same playbook used by special interest groups in Washington, D.C., to cut secret deals with federal agencies and force them on American consumers and companies.
In Washington, D.C., this duck is referred to as “sue and settle.” The U.S. Chamber defines this as when, “an agency intentionally relinquishes its statutory discretion by accepting lawsuits from outside groups that effectively dictate the priorities and duties of the agency through legally binding, court-approved settlements negotiated behind closed doors—with no participation by other affected parties or the public.” The EPA has aggressively used this tactic to push new mandates on American companies.
These settlements result in the form of consent decrees between the federal agency and the private entity. The terms and mandates of the settlement are typically made public only once the decree is filed with the court.
Sound familiar? It should. It is very similar to the new strategy employed here closer to home where a few entrepreneurial attorneys solicit and cut lucrative contingency contract deals with a public entity behind closed doors that allocate millions of public dollars to a select few. After the deal is cut, it is then made public after it is all signed and sealed.
The problem is that these types of actions transform an independent authority into an entity that is beholden to the direction of the lawsuit architects. Citizens expect state and local agencies to represent their interests in a fair and balanced way. They may not always agree, but they want to participate in an inclusive process. They want input, ideally, before the deal is cut.
In Washington, D.C., the sue-and-settle process allows agencies to privately work out a regulation and have the court approve it, bypassing the normal rule making process and the public input it demands. Congress, the public, and those entities that will be forced to comply with these new mandates are left putting the pieces together after the writing is already on the wall.
In Louisiana, we are seeing governmental entities draft, contract, and file aggressive suits against employers before the public is able to give any real input. Once the public becomes aware of these suits, the same governmental entities use assertions of independence to discourage public sentiment from standing in the way of these lawsuits. Independence should not be confused with immunity, especially when it is used as a justification to file lawsuits that impact the people of this state. The public deserves more input and safeguards than that, particularly when any suit plans to allocate potential public recovery to a select group of attorneys.
This growing trend of secretly regulating by lawsuit at the national and state level should be alarming to anyone doing business in this state or country. You never know whose goose is being cooked next until you feel the water heating up all around you.
Are these really the type of actions that best serve the public? Here in Louisiana, we will debate for the next several months how best to spend every dime in a $25 billion budget. In contrast, proponents of these Louisiana lawsuits argue the public has no real right to question the millions of public dollars being committed to a select few attorneys until after the fact. Sounds a lot like what we see these days from federal agencies in Washington, D.C.