Crying Crocodile Tears Over “Sue-and-Settle”

by Greg Walcher on March 26, 2024

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.

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Using a Different Tool to Control Water

by Greg Walcher on March 1, 2024

There are at least 25 different types of wrenches commonly found in toolboxes. There are box-end, open-end, combination, and crescent wrenches. For particular jobs, one might reach for a lug wrench, basin wrench, oil filter wrench, or an impact, flare-nut, strap, chain, or torque wrench. Like most people, I also have socket wrenches, Allen wrenches, and pipe wrenches.  

My dad taught us that every job is easier with the right tools, but he also knew there were several ways to accomplish any task. If one wrench won’t work, you try a different wrench. That is exactly what environmental industry lawyers, and their government allies, are doing in the wake of the Supreme Court’s ruling in Sackett v. EPA.

That is the case in which the Court finally declared once and for all that “Waters of the United States” (WOTUS) does not include every creek, pond, ditch, puddle, and parking lot drain in the country. EPA spent almost a decade trying to use WOTUS as the regulatory tool for a vast expansion of federal jurisdiction, to include virtually all activity that touches any water, even though the Clean Water Act, from which the WOTUS definition originates, explicitly applies to America’s major rivers, bays, and oceans – “navigable waters.”

WOTUS became one of the most litigated issues in environmental history, with lawsuits over several EPA attempts filed by more than half of all the states, with federal courts generally reining in the EPA several times. Congress also overruled the agency at one point, signaling both the EPA and the courts that it never intended such broad authority. Congress has had 50 years to re-define “navigable waters,” if it wanted to expand EPA authority, but it has never done so.

Finally, there was the case of the Sackett family, which EPA harassed for 16 years for the unpardonable sin of wanting to build a house on their own property, which EPA claimed was a regulated wetland under WOTUS (never mind that there is no wetland there, nor any navigable water anywhere nearby). The Court ruled against EPA in 2012 on procedural issues but the EPA would not give up. Ultimately the court ruled against the EPA again last summer, overturning lower courts and declaring that the Clean Water Act applies to waters that have a “continuous surface connection” to rivers and waterways that affect interstate commerce, as the law says.

Justices were divided on the rationale but unanimous in the ruling. EPA and its environmental allies could continue re-issuing more rulings and relitigating the issue, or they can wait for better margins both in Congress and on the court. But the unanimous nature of the Sackett decision makes that strategy questionable, and many proponents are having to face the reality that the Clean Water Act does not give EPA authority to regulate all the water in places where there is no navigable interstate commerce. There is no navigable water in Colorado, for example, so no EPA authority under WOTUS.

So, if they want to regulate all the water in a state like Colorado, but can no longer rely on WOTUS for such authority, what do they do? Get a different tool.

Looking at the available tools in the environmental toolbox, the biggest wrench of all has been staring them in the face all along – the Endangered Species Act (ESA). And sure enough, Greenwire is now reporting that “clean water advocates” are “scrambling to find alternative tools to use in court” and looking squarely at the 50-year-old endangered species law.

One prominent environmental lawyer is quoted as saying, “I think it’s fairly well-accepted that there may be places where there are wetland-dependent species or ephemeral stream-dependent species where ESA could be a tool…” Another chimed in, “We’ve seen how effective the Endangered Species Act can be.” In fact, it is the most powerful environmental law ever enacted, and has withstood litigation for generations.

It is no coincidence that environmental petitioners have requested that another 3,178 more species be added to the federal endangered list, more than the total number added in the entire 50-year history of ESA. Many of them are wetland or water-dependent species, so count on the ESA becoming a major tool for EPA and the US Fish and Wildlife Service to attempt continued regulation of western water.

It is predictable that many of the petitions for new listings will be granted, and then federal agencies will continue insisting on federal permits for any and all development that might be anywhere near water.

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Do Fish Understand Environmental Justice?

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Southerners have enjoyed shrimp and grits for generations, New Englanders have their clam chowder, Marylanders their crab cakes, and Cajuns their crawfish etouffee. Oysters Rockefeller is a century-old tradition, while calamari, sushi, and ceviche are more of an acquired taste, but growing in popularity. Thankfully, all those fish no longer need worry about social justice, […]

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None of the Government’s Business?

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On Pygmy Rabbits and Bumble Bees

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If I say the sky is purple and you say it’s blue, so I challenge you to prove it, what would you do? How do you prove something nobody has spent money studying because it’s never been questioned before? Are there any scholarly, peer-reviewed journal studies proving conclusively, in a “settled science” sort-of way, what […]

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It’s the Wave of the Past

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The Dutch electronic band Quadrophonia had a minor hit in the 1980s called “Wave of the Future,” hardly an original title. It was the name of Anne Morrow Lindbergh’s 1940 book calling for appeasement with Hitler. Various magazines predicted that the “wave of the future” would be nuclear powered vacuum cleaners, flying cars, shopping malls, […]

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A Sad Day to be Green

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A couple Minnesota brothers were “discovered” by Garrison Keillor and invited to his Prairie Home Companion radio show a few years ago. With a retro-country and early rock sound, the “Cactus Blossoms” have now released five albums, toured extensively, and become YouTube sensations. Deservedly so – they are great. One of their biggest hits is […]

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Now Why Didn’t They Think of That?

January 12, 2024

Doug Stone topped the country charts in 1993 with a song about why the other guy always wins the girl’s heart. “He sends her roses, and lines he composes,” he sang. “He’s there to hold her when she needs a shoulder… He says he needs her, tells her he loves her.” All of which concludes […]

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Year-End Mischief in Washington

January 3, 2024

The week between Christmas and New Year’s is, for most Americans, a week of vacation, travel, rest, and time with family and friends. It is a time when the fewest people are focused on the daily news; in fact, many people purposely ignore the rest of world and concentrate on their own families, at least […]

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Most Popular Wolf Names for 2024

December 29, 2023

The Social Security Administration, ever searching for important tasks, tracks the most popular new names for babies each year (Olivia and Liam, four years straight). Similarly, Rover.com tracks the most popular pet names (Luna and Max). But who is keeping track of the names we give wild animals? Well, nobody, because we don’t name wild […]

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