Green groups are using the courts to co-opt the Environmental Protection Agency, and taxpayers are being forced to cover the activists’ legal fees.
Here’s how it works: Environmental groups craft lawsuits to force the EPA and other agencies to issue regulations. But because the EPA agrees with green groups’ radical environmental agenda, it often chooses not to defend itself, sometimes even providing environmental-advocacy organizations with information that will help them bring the case.
The EPA then settles, negotiating the terms with the environmental groups without including those pesky states or industries sure to be affected by the new regulations. The court approves the consent agreement without analysis, as if it were a simple agreement between private parties. And once a settlement is reached, the court orders the EPA to issue rules according to the terms of its agreement.
The environmental organizations that brought the case then hold the EPA accountable for living up to its settlement, and the EPA then uses funds given to it by Congress to meet the demands of a special interest.
“It’s huge because it allows the EPA to reprioritize agency actions without going through Congress,” says Bill Kovacs, senior vice president of environmental, technology, and regulatory affairs at the U.S. Chamber of Commerce. “It’s an amazing process that allows the EPA to address the issues the environmental groups want addressed . . . while using congressional appropriations to achieve the goals of private parties.” Furthermore, Kovacs says, the EPA is “able to tell Congress, ‘The court made us do it.’”
And here’s the kicker: The environmental special-interest groups’ legal expenses are often covered by taxpayers.
The Treasury Department’s Judgment Fund covers the legal fees when a group successfully brings a case against the government, or when a settlement is reached. A 2011 report by the Government Accountability Office examined some of the costs to taxpayers from environmental groups’ suits against the EPA. It found that between 2003 and 2010, the Treasury paid at least $14.2 million to successful plaintiffs in environmental suits against the federal agencies.
“It’s another insidious angle to this,” says William Yeatman, the assistant director of the Competitive Enterprise Institute’s Center for Energy and the Environment. “In essence, the taxpayer is subsidizing secret policy negotiations between the EPA and special interests.”
President Obama’s first term has already seen an unprecedented number of sue-and-settle cases. A study released this week by the Chamber of Commerce found that during Obama’s first term, the EPA had chosen to settle cases brought by special-interest groups at least 60 times under the Clean Air Act alone.
Environmental groups are virtually the only ones using sue-and-settle tactics to achieve their policy goals, often teaming up to craft their lawsuits. Since Obama took office, the Sierra Club has been a party in 34 such lawsuits; WildEarth Guardians, 20; and Natural Resources Defense Council, 9.
David Williams, president of the Taxpayers Protection Alliance, says, “I hate to use the word ‘collusion’ — but how about ‘communication’? — I believe there’s communication between the EPA and these [environmental] groups because they both have the same agenda.”
The Chamber of Commerce report claims that the settlements were directly responsible for more than 100 new EPA regulations, all favorable to the advocacy groups. The Utility MACT Rule, Boiler MACT rule, Chesapeake Bay Clean Water Act Rules, and Regional Haze Implementation Rules are just some of the major regulations that resulted from sue-and-settle agreements. Six of the sue-and-settle regulations alone carry annual costs of up to $101 billion annually; four more carry compliance costs of up to $23.66 billion. And that’s by no means an exhaustive tally of the economic impact.
Those are just the cases that are on record. The Clean Air Act requires the EPA to announce all related settlement agreements. But myriad other environmental statutes require no notice whatsoever to be given to industry, state governments, or the public. And when industries or state governments affected by settlements attempt to get a hearing in court, they’re often excluded, says CEI’s Yeatman.
Senator David Vitter (Louisiana) and his fellow Republicans on the Environment and Public Works Committee have raised concerns about sue-and-settle agreements numerous times as Congress considers the nomination of Gina McCarthy to head the EPA.
And Senator Charles Grassley (R., Iowa) and Representative Doug Collins (R., Ga.) have sponsored legislation to limit the rules that result from settlements between private groups and federal agencies.
“Under the Obama administration, pro-regulatory environmental groups use sue-and-settle tactics to make closed-room deals under the cloak of judicial authority, costing thousands of jobs,” Representative Collins tells National Review Online through a spokesperson. “My legislation brings sunlight to these agreements, and allows job creators their day in court. Any time we can increase transparency in the federal government, we should do so.”
But so far, no Democrats have signed on to co-sponsor the legislation, and its chances of becoming law are slim. Through sue-and-settle, the executive branch, with the help of the courts, sidesteps both the American public and Congress.
— Jillian Kay Melchior is a Thomas L. Rhodes Fellow of the Franklin Center for Government and Public Integrity.