Here’s how our scheme will work. I am a federal regulator, and want to make a new regulation. However, the legal rulemaking process is complicated and time-consuming. Even worse, most people are actually against it, so it might not get done through the regular process, because that requires public involvement and lots of pesky people will get involved.
Our end-run around that process will be simple, and brilliant. You sue me, demanding in court that I make this new rule. Then, I’ll have my lawyers settle the case out of court – by agreeing to your demands. That way, I’ll be required by court order to issue the new regulation, which I wanted to do anyway. For your trouble, I’ll pay you millions in legal fees, and you’ll be able to afford plenty of lawyers to do it again on some other issue, upon which we secretly agree.
That last detail is vital. We have to keep the whole thing secret, because the public would never stand for it. After all, I am a public official, and we are doing public business with public money. So, part of our out-of-court legal settlement will be a sealed non-disclosure agreement. Complete secrecy will be included in the court order. Bazinga!
The joke is on us, as this scenario has played out hundreds of times over the past couple decades, leaving many environmental lawyers and their organizations with more money than they can spend.
The Interior Department has now joined the EPA in issuing new instructions designed to put an end to this taxpayer-funded gravy train. That doesn’t mean they won’t settle lawsuits, but they will no longer agree to secrecy. Interior’s “secretarial order” quantifies the problem: between 2012 and 2017, the Department agreed to at least 460 of these settlements, paying the plaintiffs more than $4.4 billion. That is the tip of the iceberg; it’s only one department. Opponents of this “sue and settle” practice have asked for years exactly how much has been paid, by which agencies, to what organizations. That information is secret because of the nondisclosure agreements, so the government will not tell you who got how much. Even Congress cannot find out.
Congress once required regular reports, but during the Clinton Administration, agencies were told to stop collecting the data. That way, they could simply tell nosy congressmen, “We don’t know how much was paid to whom; we have no database for that.”
The U.S. Chamber of Commerce recently used the Freedom of Information Act to force some disclosure, not of the dollar amounts, but at least a list of environmental cases that were settled. The Justice Department compiled the list, which includes 940 cases related to wildlife (endangered species), 582 cases about environmental enforcement, and another 249 “environmental defense” cases. In other words, between Interior and the EPA, the government used this “sue and settle” process 1,771 times from 2012 through 2016.
Using this secret backdoor process to transfer billions in public money to private individuals or organizations ought to be appalling enough for Congress to put an end to it. But sadly, the result is actually much worse than a mere financial scandal. The resulting regulations have cost the economy billions of dollars and thousands of jobs, without Congressional approval.
Nearly all these lawsuits are brought under the Clean Air Act, Clean Water Act, and Endangered Species Act, so the regulations they produce have a tremendous impact. For example, that process at EPA resulted in more than 100 new regulations, including the “Clean Power Plan,” the Obama program to kill the coal industry. The EPA also finalized its regulations on methane emissions from oil and gas operations, settling a lawsuit filed by several of the usual suspects: Sierra Club, Environmental Defense Fund, Earthjustice, Center for Biological Diversity, and Natural Resources Defense Council. They accused EPA of “failure to perform its nondiscretionary duty under the Clean Air Act to issue final emission guidelines limiting methane and volatile organic compound emissions from existing sources in the oil and natural gas sector.”
The Justice Department has reported that such organizations file an average of three environmental lawsuits a day. Now you know, the taxpayers fund much of that litigation.
This has gone on way too long. There are things the government must do in secret, especially personnel matters. But in making important public policy, and doling out billions of public dollars, no agency should do anything secret. Both EPA and Interior have now turned that fundamental principle into official policy. Bazinga.
A version of this column appeared in the Grand Junction Daily Sentinel October 5, 2018.
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