Posting below an NRO article in its entirety by Jillian Melchior, a Fellow over at the Franklin Center for Government and Public Integrity, on the phenomena of sue-and-settle by some environmental groups. The terms of sue-and-settle agreements are decided upon solely between a judge, the government, and the plaintiffs, to the exclusion of the American public and otherwise straightforward administrative procedures. Some environmental groups have found this tactic an effective way of circumventing and speeding up the normal course of rulemaking involving APA’s public notice and comment provision, which can take on average three years from the time a regulation is first proposed until it is finally promulgated. Although sue-and-settle certainly isn’t confined to the Obama Administration, as the practice has been occurring with increasing frequency, a new report by the U.S. Chamber of Commerce claims that more than 100 EPA rules have been adopted using this strategy since 2008. According to Melchior, “green groups are using the courts to co-opt the EPA, and taxpayers are being forced to cover the activists’ legal fees.” The Hill also has an article here. Melchior explains how it works.
Environmental groups craft lawsuits to force the EPA and other agencies to issue regulations. But because the EPA agrees with green groups’ radical environmental agenda, it often chooses not to defend itself, sometimes even providing environmental-advocacy organizations with information that will help them bring the case.
The EPA then settles, negotiating the terms with the environmental groups without including those pesky states or industries sure to be affected by the new regulations. The court approves the consent agreement without analysis, as if it were a simple agreement between private parties. And once a settlement is reached, the court orders the EPA to issue rules according to the terms of its agreement.
“It’s huge because it allows the EPA to reprioritize agency actions without going through Congress,” says Bill Kovacs, senior vice president of environmental, technology, and regulatory affairs at the U.S. Chamber of Commerce. “It’s an amazing process that allows the EPA to address the issues the environmental groups want addressed . . . while using congressional appropriations to achieve the goals of private parties.” Furthermore, Kovacs says, the EPA is “able to tell Congress, ‘The court made us do it.’”
While it is of course true that EPA is often sympathetic to the goals of the private parties – yet not always – I can assure you that EPA on balance is not sympathetic to the tactics as Kovacs suggests. Speaking from my experience in EPA’s Office of Water, the majority of EPA’s water agenda and workload stems from court-ordered action which often precludes the agency from prioritizing and setting a course of its own choosing. These settlements consume an inordinate amount of time and resources at the expense of other initiatives the agency would otherwise undertake. Melchior continues:
And here’s the kicker: The environmental special-interest groups’ legal expenses are often covered by taxpayers.
The Treasury Department’s Judgment Fund covers the legal fees when a group successfully brings a case against the government, or when a settlement is reached. A 2011 report by the Government Accountability Office examined some of the costs to taxpayers from environmental groups’ suits against the EPA. It found that between 2003 and 2010, the Treasury paid at least $14.2 million to successful plaintiffs in environmental suits against the federal agencies.
“It’s another insidious angle to this,” says William Yeatman, the assistant director of the Competitive Enterprise Institute’s Center for Energy and the Environment. “In essence, the taxpayer is subsidizing secret policy negotiations between the EPA and special interests.”
President Obama’s first term has already seen an unprecedented number of sue-and-settle cases. A study released this week by the Chamber of Commerce found that during Obama’s first term, the EPA had chosen to settle cases brought by special-interest groups at least 60 times under the Clean Air Act alone.
Environmental groups are virtually the only ones using sue-and-settle tactics to achieve their policy goals, often teaming up to craft their lawsuits. Since Obama took office, the Sierra Club has been a party in 34 such lawsuits; WildEarth Guardians, 20; and Natural Resources Defense Council, 9.
David Williams, president of the Taxpayers Protection Alliance, says, “I hate to use the word ‘collusion’ — but how about ‘communication’? — I believe there’s communication between the EPA and these [environmental] groups because they both have the same agenda.”
The Chamber of Commerce report claims that the settlements were directly responsible for more than 100 new EPA regulations, all favorable to the advocacy groups. The Utility MACT Rule, Boiler MACT rule, Chesapeake Bay Clean Water Act Rules, and Regional Haze Implementation Rules are just some of the major regulations that resulted from sue-and-settle agreements. Six of the sue-and-settle regulations alone carry annual costs of up to $101 billion annually; four more carry compliance costs of up to $23.66 billion. And that’s by no means an exhaustive tally of the economic impact.
Those are just the cases that are on record. The Clean Air Act requires the EPA to announce all related settlement agreements. But myriad other environmental statutes require no notice whatsoever to be given to industry, state governments, or the public. And when industries or state governments affected by settlements attempt to get a hearing in court, they’re often excluded, says CEI’s Yeatman.
Senator David Vitter (Louisiana) and his fellow Republicans on the Environment and Public Works Committee have raised concerns about sue-and-settle agreements numerous times as Congress considers the nomination of Gina McCarthy to head the EPA.
And Senator Charles Grassley (R., Iowa) and Representative Doug Collins (R., Ga.) have sponsored legislation to limit the rules that result from settlements between private groups and federal agencies.
“Under the Obama administration, pro-regulatory environmental groups use sue-and-settle tactics to make closed-room deals under the cloak of judicial authority, costing thousands of jobs,” Representative Collins tells National Review Online through a spokesperson. “My legislation brings sunlight to these agreements, and allows job creators their day in court. Any time we can increase transparency in the federal government, we should do so.”
But so far, no Democrats have signed on to co-sponsor the legislation, and its chances of becoming law are slim. Through sue-and-settle, the executive branch, with the help of the courts, sidesteps both the American public and Congress.
As the former U.S. Supreme Court Justice Louis Brandeis once remarked, “sunlight is the best form of disinfectant.” And while I’m sympathetic to environmental groups whose goal it is to accelerate environmental protection – particularly during a time of partisan gridlock – reform to provide greater openness and transparency on back-door regulating is long overdue. The solution, however, should be confined to providing non-litigants with a vested interest in a matter with national implications an opportunity to weigh in on the ultimate disposition and terms of any settlement rather than making it more difficult for private citizens to bring such suits. The authority that gives citizens standing to bring such cases in the first place, i.e., private citizen suit provisions, although unpopular by some, is important for allowing citizens the right to file claims against alleged violators of law. This process is an important aspect of legal checks-and-balances, as is adhering to administrative procedures intended to offer the public an opportunity to engage in our democratic process.