In July, Representative Lynn Westmoreland (R-Ga.) took on the little known radical environmentalist scam known as “sue and settle” where a green group acting in cahoots with the EPA or U.S. Fish and Wildlife Service sues the Agency demanding that they apply the law in a new, expanded way that increases the agency’s jurisdiction.
The agency, rather than defending the law, enters into a consent decree with the party who filed the original lawsuit. A judge signs the consent decree without review, since the two “disputing” parties are in agreement. Suddenly, the agency has new, expansive powers to wield against job creators. And then for the kicker, taxpayers have to foot the legal bills of the attorneys who filed the suit.
The Westmoreland defund amendment to the Interior Department appropriation bill would have rolled back this abuse of taxpayer funds by denying the payment of attorney fees in ‘sue and settle’ cases. This action is needed to stop this Obama Administration orchestrated expansion of executive power.
The amendment read: “None of the funds made available by this Act may be used to pay legal fees pursuant to a settlement in any case, in which the Federal Government is a party, that arises under — (1) the Clean Air Act (42 U.S.C. 7401 et seq.); (2) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); or (3) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).”
As Westmoreland noted in his July 7 floor speech, “Between 2009 and 2012, the EPA chose not to defend itself in over 60 of these lawsuits from special interest advocacy groups. Those 60 lawsuits resulted in settlement agreements and in the EPA’s publishing more than 100 new regulations.”
Westmoreland added, “Also included in these legally binding settlements are requirements that U.S. taxpayers must pay for the attorneys of the organization that initiated the action. According to a 2011 GAO report, between 1995 and 2010, three large environmental activist groups, like the Sierra Club, received almost $6 million in attorneys’ fees alone.”
A 2013 letter from Sen. David Vitter (R-La.) and Sen. Jeff Sessions (R-Ala.) to EPA administrator Gina McCarthy highlights such an example of sue and settle on a start-up, shutdown, and malfunction rule: “In November 2011, the Environmental Protection Agency (EPA) and the Sierra Club negotiated a settlement whereby EPA unilaterally agreed to respond to a petition filed by Sierra Club seeking the elimination of a longstanding Clean Air Act exemption for excess emissions during periods of startup, shutdown, and malfunction. The EPA went out of its way further to deny the participation of the States, and other affected parties. Oddly, it appears that, instead of defending EPA’s own regulations and the SSM provisions in the EPA-approved air programs of 39 states, EPA simply agreed to include an obligation to respond to the petition in the settlement of an entirely separate lawsuit. In other words, EPA went out of its way to resolve the startup, shutdown, and malfunction petition in a coordinated settlement with the Sierra Club.”
As a result, Vitter and Sessions wrote, “Notwithstanding 40 years of precedent to the contrary, EPA has now decided that the state implementation plans of 36 states are legally inadequate because of their startup, shutdown, and malfunction provisions.”
In a February 2015 statement preceding his introduction of legislation to combat this abusive practice, Senator Charles Grassley further emphasized the problems with sue and settle: “Sue and settle litigation allows federal agencies to short-circuit the controls that Congress has set in place to ensure transparency in the rulemaking process. These tactics result in new federal regulations imposed on American businesses and ultimately, on American families, all without an adequate opportunity for the public to weigh in. Sue and settle litigation makes a mockery of the public accountability and transparency protections required by the Administrative Procedures Act. It also limits the ability of the executive branch to engage in principled decision making.”
The abuse of the sue and settle provisions by the Obama Administration are just one of many examples of this Administration establishing law using backdoor channels without the consent of Congress or even the use of the normal Administrative Procedures Act that governs the regulatory process.
Ironically, the Westmoreland amendment never came up for a vote after the appropriations process ground to a halt as House Democrats created a phony Confederate flag dispute stopping this and other amendments from passing that would have road blocked Obama’s flouting of the law.
The upcoming Omnibus spending bill will set and prioritize spending for ten of the last thirteen months of the Obama Administration. It will either prevent Obama from cementing his legacy by using tactics like sue and settle to go around Congress to expand the size and scope of government or it won’t. Congress has one chance to get it right, and they need to rein in Obama’s abuse of the sue and settle system or else the next Administration will spend much of its time trying to fight environmental lawsuits opposing changes to the Obama-made law.
It is time to shut the door on Obama’s sue and settle loophole.
This is a guest post by Rick Manning President of Americans for Limited Government.