“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 they and the litigants both want….
While the environmental group is given a seat at the table, outsiders who are most impacted are excluded, with no opportunity to object to the settlements. Accordingly, both the litigants and the defendant agency, operating in coffee bars and friendly courtroom shadows, avoid the harsh outside glare of oversight. No public notice about the settlement is released until the agreement is filed in court…after the damage has been done.
On top of all that, we taxpayers, including those impacted regulatory victims, 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: Earthjustice, $4,655,425 (30%); the Sierra Club, $966,687; and the Natural Resources Defense Council, $252,004. Most of this was paid to environmental attorneys in connection to lawsuits filed under the Clean Air Act, followed next by the Clean Water Act.
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, since EPA doesn’t keep track of their attorney’s time on a case-by-case basis.
While researching various broken government regulatory processes, the U.S. Chamber of Commerce discovered many new rulemakings and unreasonable permitting delays which appeared to have resulted from such consent decrees in which the EPA agreed to bind itself to issue new regulations on a specific timetable; i.e., “We can tell Congress the court made us do it.”
The Chamber concluded that such 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. One of the most successful Sue and Settle strategies they cited “… has been on an issue few in Washington or around the nation are paying attention to: regional haze requirements under the Clean Air Act.”
The Chamber study’s author, William Yeatman, Assistant Director for Energy and Environment at the Competitive Enterprise Institute (CEI), emphasizes that EPA’s abuse of its Regional Haze authority forces states to relinquish their authority and accept EPA’s far more expensive plans, thereby increasing consumer utility charges. He concluded that: “… no state is immune from having its rightful Regional Haze authority trampled by EPA at profound costs for virtually nonexistent benefits.”
Having conducted eight state case studies, Yeatman found that:
* In Arizona, EPA’s Regional Haze regulation threatens to increase the cost of water, forcing the state to spend an additional $90.2 million per year to implement the federal regulation.
* In Montana, EPA’s proposed Regional Haze controls are nearly 250% more expensive than what that agency’s standing rules presume to be “cost-effective” for compliance.
* In 2011, the EPA disregarded New Mexico’s Regional Haze plan, instead imposing a federal plan that requires nearly $840 million more in capital costs…potentially raising average annual household utility bills by $120.
* Although North Dakota is one of only 12 states that achieves all of EPA’s air quality standards for public health, it would not be able to achieve EPA’s Regional Haze goals for visibility even by shutting down all industry. The EPA plan would also cost the state an additional $13 million per year.
* Refusing to approve Oklahoma’s Regional Haze plan, the EPA’s plan would cost the state $282 million annually.
* In Wyoming, the EPA proposed a federal implementation plan that would cost almost $96 million per year more than the state’s plan.
* Minnesota is subject to back-to-back Regional Haze regulations, whereby EPA is claiming authority to regulate regional haze twice in succession at its Sherburne County generating plant.
* EPA’s proposed plan would cost Nebraska nearly $24 million per year to achieve invisible “benefits”.
Louisiana Senator David Vitter (R-LA), the new ranking member of the Senate Environment and Public Works Committee, plans to investigate this Sue and Settle practice, “using all available tools to bring to light this often abused path to regulatory influence.” For starters, he asked his Louisiana Attorney General Buddy Caldwell to join with AGs of 13 other states who filed a Freedom of Information Act (FOIA) request with EPA on August 10, 2012, asking for any and all correspondence between EPA and a list of 80 environmental, labor union and public interest organizations that have been party to litigation since the start of the Obama Administration.
Unfortunately, getting federal agencies to comply with formal FOIA requests isn’t proving to be easy. And to make matters worse, there is evidence that top bureaucrats have even used private e-mail accounts and aliases to cover culpability tracks.
For example, Senator Vitter, along with Representative Darrell Issa (R-Calif.) who heads the House Oversight and Government Reform Committee, recently sent a letter to James Martin, EPA’s Region 8 administrator, warning him: “The use of personal, non-official e-mail accounts raises concerns that you could be attempting to insulate this and other e-mail correspondence from a Freedom of Information Act request. Moreover, your actions may also constitute violation of the Federal Records Act” … evading congressional oversight of federal agencies.
One of those private e-mails at issue involved an exchange between Martin and Vickie Patton, the General Counsel for the Environmental Defense Fund, regarding an arranged meeting with him. Patton wrote: “Hi Jim, Next Monday or Tuesday December 12/13 at 9 am depending on which is best for you.” Responding, Martin replied: “January 13 at 9:00 am works for me if it works for you. (Lost your original note – is that the date and time you proposed?” Vitter and Issa have confirmed that the meeting did, in fact, take place at the EPA regional office.
Several Martin e-mails were released by EPA as the result of a FOIA lawsuit lodged by Christopher Horner of the Competitive Enterprise Institute. Horner’s efforts also revealed evidence that former EPA Administrator Lisa Jackson was conducting official agency business under cover of the alias name “Richard Windsor”, and CEI also sued EPA seeking e-mails concerning the EPA’s behind-the-scenes regulatory war on coal plants. Horner’s new book, The Liberal War on Transparency, discusses this and other tricks.
Suspicions abound that the exposure of Jackson’s undercover communications had much to do with her departure decision shortly afterwards. Senator Vitter commented: “I think this e-mail issue clearly spurred Lisa Jackson’s resignation. But it’s much broader than her. It’s about a culture of hiding an extreme agenda from Americans because it can’t be sustained in public debate.”
CEI issued a statement that agreed with Vitter’s perspective, commenting: “We also believe the timing was no accident. She claims to have told President Obama shortly after his re-election she planned to leave in early 2013, but her announcement went public just days after the Justice Department agreed — as a result of a lawsuit filed by CEI — to begin producing 12,000 e-mails from her ‘Richard Windsor’ account.”
On January 28, 2013, on behalf of the American Tradition institute (ATI) Horner also sued in the Federal District Court of Washington, DC, to compel EPA to end its eight-month stonewall of two FOIA requests regarding its “uncomfortably close ties at great taxpayer expense” with the American Lung Association (ALA) and the Sierra Club. Both of these organizations lobby for stringent regulatory legislation the EPA wants while at the same time receiving agency funding. ALA has received $20,405,655 from EPA over the past 10 years, and has run campaigns against politicians who challenge its policies. An ALA billboard ad in Michigan targeted House Energy and Commerce Committee Chairman Fred Upton, featuring a child with an oxygen mask over her face. The text read: “Rep. Fred Upton, protect our kids’ health. Don’t weaken the Clean Air Act.”
According to the ATI complaint, “The Sierra Club employs a similar model and has close working relationships with Agency officials.” This charge refers most particularly to a recent incidence where Sierra hired disgraced EPA Region 6 Administrator Al Armendariz. He left EPA shortly after a videotape revealed him acknowledging his “philosophy of enforcement” as being akin to random crucifixions used to keep subjects suitably respectful and “really easy to manage for the next few years.” Armendariz has pledged to continue to help Sierra (and, presumably, EPA) fight the coal industry.
Senator Vitter’s office has informed me that there are ongoing investigations regarding a known revolving door of environmentalists and agencies, as well as Equal Action to Justice Act recovery money flowing to these groups post-settlement. In other words, the litigating groups are getting paid to sue both at the front end and tail end as well.
In an affidavit, ATI informed the court that one of the two specialists EPA assigned to handle the CEI’s FOIA requests admitted that a supervisor instructed her and a colleague to perform no work on them. Then: “Following this, EPA constructed a cul de sac of refusing to perform a search of responsive records until ATI agreed to pay estimated fees…which by law non-profits typically do not pay under FOIA…but which EPA then refused to provide.”
Quite certainly, EPA is not the only federal agency to engage in secret Sue and Settle deals with crony environmental lobbying organizations. In a January letter to his Attorney General Buddy Caldwell, Senator Vitter wrote: “The collusion between federal bureaucrats and the organizations entering consent agreements under a shroud of secrecy represents the antithesis of a transparent government, and your participation in the FOIA request [filed by 13 other states’ AGs] will help Louisianans understand the process by which these settlements were reached.” Caldwell subsequently agreed to the Senator’s request.
Vitter highlighted a recent example where the Fish and Wildlife Service (USFWS), under management of the Department of Interior, entered an agreement with the Center for Biological Diversity involving new rules for endangered species … a deal that could impact private property owners across the South who lack financial resources necessary to fight a legal challenge from that massive federal agency.
In a massive 2011 settlement of a lawsuit filed by environmental groups, FWS promised to address more than 250 candidate species it had previously found warranting protection under the Endangered Species Act (ESA) but were precluded from listing due to a backlog. As part of a behind-closed-door agreement, USFWS also pledged to review hundreds more species proposed for listing. One of these is the “lesser prairie chicken,” a Sue and Settle determination which would thwart economic development and give Washington politicos power to control private lands in five states: New Mexico, Texas, Kansas, Colorado and Oklahoma.
As New Mexico Congressman Steve Pearce said: “The Endangered Species Act is one of the most heavy-handed unbending laws we have…it gives bureaucrats the power to destroy entire economies with hardly a second thought.” Congressman Tim Huelskamp (R-KS) summed up concerns of his constituents, saying: “Amid historic drought in the Great Plains, the last thing we need is another federal agency intruding into the lives and private property rights of Americans. In this case, we are talking about a bird that is populous enough that we can still hunt them in Kansas. This is not about preservation of a species; it’s about federal control of private landowners and limiting the ability to develop and grow rural America. Bureaucrats are becoming an invasive species in America’s heartland.”
Noting that this ESA-based Sue and Settle ruling presents a problem for private landowners throughout the country, Senator Vitter is also encouraging the inclusion of USWFS (which was not originally included) in the multi-state AG FOIA collusion investigation. Recognizing that the path forward towards obtaining disclosure will be difficult, Vitter added that he was: “Warily confident that both EPA and USFWS will shun all efforts to open the doors on these practices, the negotiations, and the communications between agency staff and outside groups regarding Sue and Settle agreements.”
Considering that our top law enforcement official, Attorney General Eric Holder, has been cited for Contempt of Congress in withholding requested communications regarding the DOJ’s own “Fast and Furious” debacle, there can be no lingering doubt that Senator Vitter’s unfortunate prediction will prove right. Sadly, and alarmingly, this all falls far short of what would logically be expected from that “most transparent administration in history” we were promised.
Reprinted from Forbes online, 2/17/2013.