EPA Enhancing Its Power with Sue and Settle

Congress has ceded far, far too much legislative power to Administration agencies like the EPA.  The only check that exists for that power is process -- regulators have to go through fairly elaborate and lengthy steps, including several full stops to publish draft rules and collect public comment.  A lot of garbage gets through this process, but at least the worst can be halted by a public or Congressional outcry to draft rules.

But like most government officials, regulators resent having any kind of check on their power.  Just like police look for ways to conduct searches without warrants, and even the President looks for ways to rule without Congress, the EPA wants to regulate unfettered by public comment process.

The EPA has found a clever and totally scary way around this.  In short, they collude with a friendly environmental group which sues the EPA seeking certain rules that the EPA believes to be too controversial to survive the regulatory process.  The EPA settles with the friendly group, and a consent decree is issued imposing the new rules, entirely bypassing any rules-making or public comment process.  The EPA then pretends that they were "forced" into these new rules, and as a kicker, the taxpayer funds the whole thing by making large payoffs to the environmental group who initiated the suit part of the settlement.  Larry Bell describes the process:

“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 both they and the litigants want.

And who pays for this litigation? All-too-often we taxpayers 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, with Earthjustice accounting for 30 percent ($4,655,425).  Two other organizations with histories of lobbying for regulations EPA wants while also receiving agency funding are the American Lung Association (ALA) and the Sierra Club.

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 because EPA doesn’t keep track of their attorney’s time on a case-by-case basis.

The U.S. Chamber of Commerce has 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. Such consent decree-based rulemaking enables EPA to argue to Congress: “The court made us do it.”

  • sean2829

    Who would of thought that the World Wildlife Fund would be so similar to the World Wrestling Federation. You put on a contest with a predetermined outcome and small but vocal group of fans cheers on the charade.

  • Yet another screwed taxpayer

    The complaint is with Congress not the courts as Congress has included standing to bring lawsuits in the EPA statutes. It is another form of crony capitalism as the environment groups do heavy lifting that Congress is too chicken shit to do least they become former Congress Critters, The courts and the tax payers are the victims caught in the middle of this unholy triangle.

  • aczarnowski

    That's some lawful-evil genius right there.

  • Matthew Slyfield

    Where does he suggest that the courts are the problem? In fact the whole sue and settle process is a fraud on the court.

  • bigmaq1980

    "The end justifies the means" - Alinsky's Rules for Radicals

    All I can say.

    It is shocking but I guess we should not be surprised anymore, especially after the President knowingly, clear as day, misrepresented to the public his signature program, Obamacare.

    Dissemble and obscure seems to be the order of the day (century!).

  • MingoV

    I read about this years ago. Congress could stomp on the practice does nothing. Why? If Congress did its job with the EPA, IRA, DEA, USDA, HHS, FDA, FAA, FCC, FTC, ETC., then it would piss off constituents by not adding their preferred regulations or it would spend all its time on nitpicking regulatory details. The third choice, disband or tremendously downsize those departments and agencies, isn't conceivable to Congress.

  • Yet another screwed taxpayer

    “The court made us do it.”

  • Craig L

    Fraud that the court allows. Courts could reject these settlements.

  • mesocyclone

    This nasty practice has been going on for at least a couple of decades.

  • bigmaq1980

    Perhaps so.

    Does anyone know of any measure that compares periods?

    It would be worthy to know if the frequency and/or economic impact has been increasing.

    My intuition says yes, and wouldn't be surprised if it happens/accelerates most under Democratic leadership where appetite for such "settlements" is higher (if not encouraged), though one could argue a "compounding/momentum" effect.

  • http://devilish-details.blogspot.com/ mesaeconoguy

    Ah yes, everyone needs a legal version of Marius van der Lubbe.

  • Matthew Slyfield

    Actually, because the so called settlements are being arranged before the suit is even filed, what the courts should be doing is dismissing the suits for lack of case or controversy. The failure of the courts to rein in these cases is minor compared to the collusion between the EPA and environmental activist groups.

  • Canvasback

    Pet Peeve Alert: It's "would have"

  • teapartydoc

    Selling "protection" can be transferred into any part of society and every economic transaction. The mafioso were just ahead of their time. They'd make out great as a government agency.

  • FelineCannonball

    It's called the clean air act. You'll have to revisit it of you want things to work out differently. A lot of 1970s era Nixon legislation has far reaching consequences. Regulations are actually behind relative to the legislative mandate. That's why lawsuits move things forward. CO2 might be an over-reach, but that one will be decided in the court, not through settlement.