Crying Crocodile Tears Over “Sue-and-Settle”

House Republicans were so upset that they held two committee hearings during 2023, and in November the Committee on Oversight and Accountability announced that it will investigate EPA’s “use of secretive ‘sue-and-settle’ practices.” The Chairman says EPA uses the tactic “to avoid congressional oversight” and implement policies that special interests want.

Letting outside groups sue the government to compel enforcement actions dates from the Nixon years, and during the Reagan era became a favorite tactic of the environmental industry. During the Clinton Administration several agencies discovered they could make secret back-room deals, using outside groups to file “friendly lawsuits” demanding they do what they wanted to do anyway, thereby short-circuiting all sorts of administrative hurdles. Convincing friendly groups to litigate was easy – the government would agree to pay their legal fees as part of the settlement. The result would be a court “consent decree,” its details and costs often sealed from prying eyes.

Now, six Republican congressmen led by Rep. Bob Good (R-VA) have even introduced a bill, the “No Regulation Through Litigation Act” to put a stop to it. Well, not exactly to ban the practice, but to “disincentivize” it. And they want hearings soon – though my guess is that there will be plenty of time to discuss this over the next few decades before acting on it. I think it’s what we’ll see because I know it’s what we’ve seen. No need to rush into anything.

James Varney wrote an excellent analysis for RealClearInvestigations, explaining that the practice, which was implemented on steroids by Obama officials, with more than 2,260 such settlements during his second term, just at Interior and EPA. Trump appointees blocked the practice, but not for long. Varney writes that “Under Biden’s Lawfaring Eco-Politics, It’s Back.”

He cites a classic example. “When the Biden administration announced in 2022 that it would remove some four million acres of federal land [in Colorado, Wyoming, and Utah] from oil and gas exploration, environmental groups hailed the decision.” He quotes one environmental industry leader gushing, “this is a critical opportunity for the Biden administration to chart a new path toward clean energy and independence from fossil fuels.” Turns out that the decision was made to settle a lawsuit filed by the very same organization cheering – and benefitting from – the “settlement.” Congress did not change the law requiring leasing of those lands; nor was Congress even informed of the resulting “consent decree.”  

The same tactic was used to wall off six million acres of the Gulf of Mexico from exploration. Congress didn’t change the law there either. The agency quietly agreed to the ban to settle a lawsuit brought by environmental industry groups, and paid their legal fees. The reality is that Congress would never be able to muster majority votes for such fundamental changes in America’s economy. So, these groups and their allies in government use the court process to make major policy without any elected official involved. No need for public involvement, depending on who one considers to be “the public.” The environmental litigators, of course, see themselves as the voice of the public. One official says the “sue-and-settle” system “serves the public interest,” explaining that it provides “the public direct opportunity to influence the scope of federal rules and safeguards.” But no public ever elected him, and those who were elected were not consulted. In America, “public” servants are elected, not self-appointed.

It should be clear that “sue-and-settle” is a means to advance an agenda that is specifically not approved by voters and their representatives. And it’s not just “back,” it’s bigger than ever. Legal fees in these settlements in just one agency (EPA) have doubled in the last two years, according to OpenTheBooks.com. EPA officials won’t answer questions about the numbers, and Congress won’t force them. EPA faces hundreds of such lawsuits all the time, with the outside “friendly” groups filing environmental lawsuits at the rate of three a day.

Don’t worry, though, Congress is about to investigate. As long as they don’t have to talk about solutions. Varney says he contacted numerous congressmen on the oversight committees, all but one of whom declined to answer, Rep. Good calling the tactic unconstitutional and railing that the Administration is “weaponizing the government against the people,” but not predicting any immediate action on his bill. Congressmen complain about the revolving door between the agencies and these legal firms and interest groups. But what will lawmakers actually do about it?

The answer is suggested by the fact that 183 Congressmen and Senators are lawyers, including 16 judges and 32 district attorneys; 434 were previously government employees; 264 were state legislators; 77 were former congressional staffers. They can pretend to be angry about this outrageous practice, as they have done throughout the 30 years I have been following the issue – as long as nobody asks what they are doing to stop it. The reason is simple. People have little incentive to change a system of which they are an integral part, and from which they earn a lucrative living.