The Trump EPA, under its current administrator Scott Pruitt, is tearing down doors on back-room “sue-and-settle” schemes which have enabled the Agency to pre-negotiate filings with activist litigants in friendly cherry-picked courts to achieve mandated legal rulings they both want. This enables the agency to blame controversial new regulatory rules on judiciary decisions which “made them do it.”
Outsiders — including state government and energy utility representatives who are often most impacted — are excluded from seats at the table, with no opportunity to object to the settlements. No public notice about settlement terms is released until the agreement is filed in court — after the damage has already been done. On top of all that, we clueless taxpayers get fleeced once again with legal fees of both colluding parties.
Last week, the EPA administrator declared that “[Those] days of regulation through litigation are over. We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days which we swiftly settle.”
Pruitt’s directive states that henceforth, the EPA will no longer commit to specific policy outcomes arising from settlements or consent decrees. Any actions will follow extensive reviews which consider diverse comments. All interested parties will be invited to weigh in, and environmental groups will no longer be automatically accorded “prevailing party” status which has been applied to qualify them to recover millions of dollars in legal fees.
The EPA Press Office made it clear that the agency will also exclude all litigants from being reimbursed for attorney fees — even if a settlement or judgement issues in their favor. A statement said, “This [policy] is not particular to one type of plaintiff. There should be no attorney’s fees paid, period, no matter who the plaintiff is.”
Investigations by The Daily Caller have revealed that more than $49 million was quietly funneled to environmental groups through these scams while President Obama assumed office. About half of that money went to the 57% of lawyers and firms whose names were redacted from publicly available records.
According to a 2011 GAO report, the biggest recipients between 1995 and 2010 (listed in order of largess), were Earthjustice.org, the Sierra Club, and the Natural Resources Defense Council (NRDC.org).
The Department of Treasury even maintains a special Judgement Fund to perpetuate these legal charades. This doesn’t include unknown legal costs incurred by the EPA in connection with those rip-offs. The agency doesn’t keep track of their attorneys’ time on a case-by-case basis.
As Oklahoma’s former attorney general, Scott Pruitt was in his state’s front lines in previous EPA battles. Oklahoma had responded to Regional Haze Plan guidelines issued under the auspices of the agency’s Clean Air Act (CAA) with an affordable proposal to transition coal plants to natural gas. Sixteen other states adopted similar proposals to comply with the federal haze rules.
A flood of new proposed EPA regulations ensued soon after President Obama took office. The Wall Street Journal reported that these included a record-breaking 137 new rules under the CAA, some costing taxpayers and energy ratepayers billions of dollars annually. This is about doubled the 66 which were issued under the previous two-term Bush presidency.
One of the most famous of these rules established unrealistic “maximum achievable control technology” (MACT) requirements for emissions from coal- and oil-fired electric utility plants. Its implementation, according to EPA’s own estimates, would cost the industry $9.6 billion annually.
While not the only federal sue-and-settle culprit, the EPA is certainly the largest. As I reported in a February 17, 2013, Forbes.com column, a U.S. Chamber of Commerce study concluded that 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.
Both aisles of Congress have turned blind eyes to this sordid sham for decades — and we, the impacted voting citizens and defrauded taxpayers, have been tolerant far too long.
At long last, the Trump EPA is finally doing exactly what the 2016 Republican platform pledged to do. It stated, “We will put an end to the legal practice of ‘sue and settle,’ in which environmental groups sue federal agencies whose officials are complicit in the litigation, so that, with the taxpayers excluded, both parties can reach an agreement behind closed doors. That deceit betrays the public’s trust; it will not be tolerated.”
Thank you, Mr. Pruitt.