Can We Trust The EPA?  Part 4– The Sue And Settle Scam

Have you heard of the Sue and Settle scam often used by the EPA? Generally the idea is for the EPA to ask some non-government , big green organization to sue them regarding some piece of  legislation. The suit is settled by a consent decree where the EPA and the big environmental group achieved their shared goals. The court sets a deadline for comments from other interested parties that is so brief that no one can make meaningful comments in time to prevent legislation from becoming law.

In 2013, the US Chamber of Commerce (C of C) looked into the Sue and Settle issue posting “Sue and Settle—Regulating Behind Closed Doors”. One of the cases the posting examined is discussed in the following:

Regional Haze Implementation Rules

“EPA’s regional haze program, established decades ago by the Clean Air Act, seeks to remedy visibility impairment at federal national parks and wilderness areas. Because regional haze is an aesthetic requirement, and not a health standard, Congress emphasized that states—and not EPA—should decide which measures are most appropriate to address haze within their borders. Instead, EPA has relied on settlements in cases brought by environmental advocacy groups to usurp state authority and federally impose a strict new set of emissions controls costing 10 to 20 times more that the technology chosen by the states. Beginning in 2009, advocacy groups filed lawsuits against EPA alleging that the agency had failed to perform its nondiscretionary duty to act on state regional haze plans. In five separate consent decrees negotiated with the groups and, importantly, without notice to the states that would be affected, EPA agreed to commit itself to specific deadlines to act on the states’ plans. Next, on the eve of the deadlines it had agreed to, EPA determined that each of the state haze plans was in some way procedurally deficient. Because the deadlines did not give the states time to resubmit revised plans, EPA argued that it had no choice but to impose its preferred controls federally. EPA used sue and settle to reach into the state haze decision-making process and supplant the states as decision makers—despite the protections of state primacy built into the regional haze program by Congress.

As of 2012, the federal takeover of the states’ regional haze programs is projected to cost eight states an estimated $2.16 billion over and above what they had been prepared to spend on visibility improvements.”

The Administrative Procedure Act (APA) was designed to allow legitimate concerns and comments on environmental legislation to be heard.   But often the Sue and Settle game is used to subvert the APA. The Heritage Organization posted “Regulation Through Sham Litigation: The Sue and Settle Phenomenon”. The posting says:

“Consent-decree settlements have also been used to short-circuit normal agency rulemaking procedures, to accelerate rulemaking in ways that constrain the public’s ability to participate in the regulatory process. The Administrative Procedure Act (APA) and other statutes recognize the values of notice and transparency, public participation, and careful agency deliberation—the very elements that sue and settle undermines. Settlements that resolve important questions of policy—whether to issue a regulation, the timeline for doing so, what entities will be covered, etc.—are struck behind closed doors, free from public scrutiny and input. By mandating aggressive regulatory timelines, settlements limit what opportunity for public participation remains while circumscribing officials’ ability to accommodate the comments they do receive.

Tossing the normal rulemaking procedures by the wayside is, in some sense, the very point of sue and settle: Doing so empowers the special-interest group that brought suit in the first place at the expense of parties that might otherwise use their political leverage and the rulemaking process to force compromises that serve the broader public interest.”

A Freedom of Information release of internal EPA emails obtained by the Energy and Environmental Legal Institute show collaboration between big Greens and the EPA.   From their posting “Emails Show Extensive Collaboration Between EPA, Environmentalist Orgs” we get the following:

“Internal Environmental Protection Agency (EPA) emails show extensive collaboration between top agency officials and leading environmentalist groups, including overt efforts to coordinate messaging and pressure the fossil fuel industry.

The emails, obtained by the Energy and Environment Legal Institute (EELI) through a Freedom of Information Act lawsuit, could fuel an ongoing controversy over EPA policies that critics say are biased against traditional sources of energy.

Emails show EPA used official events to help environmentalist groups gather signatures for petitions on agency rulemaking, incorporated advance copies of letters drafted by those groups into official statements, and worked with environmentalists to publicly pressure executives of at least one energy company.

Nancy Grantham, director of public affairs for EPA Region 1, which covers New England, asked an organizer for the Sierra Club’s New Hampshire chapter to share the group’s agenda so EPA could adjust its messaging accordingly in an email dated March 12, 2012.

“If you could, it would great [sic] if you can send me an email describing what you would like to do in early April in NH–that way I can coordinate messaging with our air offices here and at HQ,” Grantham wrote.  Critics of the agency and its nonprofit allies were surprised by the cooperation. The level of coordination in these documents is shocking,” EELI said in a statement.

Rep. Mike Pompeo (R., Kan.), a member of the Energy and Commerce Subcommittee on Energy and Power, said the emails suggest that the EPA is straying from its mission by working hand-in-hand with hardline green groups.  “It’s unfortunate that EPA has spent more of its resources promoting and coordinating a political agenda with environmentalists instead of doing its job,” Pompeo said in an emailed statement. “In Kansas, we expect public officials to serve the public interest, not the interests of radical environmentalist groups.”

The documents also reveal some of the internal deliberations behind recent controversial EPA decisions, such as the locations of public hearings on an agency rule imposing stringent emissions limits for power plants. The agency came under fire from legislators representing coal-producing states for holding those hearings far from regions where most of the nation’s coal is produced.”

The C of C study listed ten big cases of Sue and Settle as follows:

“Since 2009, regulatory requirements representing as much as $488 billion in new costs have been imposed by the federal government. By itself, EPA is responsible for adding tens of billions of dollars in new regulatory costs. Significantly, more than 100 of EPA’s costly new rules were the product of sue and settle agreements. “

Each of the above cases is discussed in some detail in the C of C report.  In addition, the C of C report has 12 more pages of “Sue and Settle Cases Resulting in New Rules and Agency Actions (2009–2012)”  The report also has an extensive list of” Rules and Agency Actions Resulting From Sue and Settle Cases (Pending or Final) 2009–2012 “

To add insult to injury, as the old saying goes, the environmental groups that sue the EPA routinely have their lawyer fees paid by the US Government. Forbes posted EPA’s Secret And Costly ‘Sue And Settle’ Collusion With Environmental Organizations .“ From that posting we get the following:

” 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.”

The EPA operates as if it were a fourth branch of government along with the other three, the Executive, Legislative and Judicial branches created by the Constitution.

The EPA must be reined in. A number of the potential Republican candidates for President in 2016 have vowed to do just that.

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