President Biden early on is touting his insistence on “ethics” from cabinet nominees and professional staff, and who can argue with that? But it will take more than a signed piece of paper to guard against the conflicts of interest and invitations to collusion that arise when professional activists from the outside suddenly find themselves on the inside, with the levers of federal power within easy reach.
The risk that we could be returning to the “sue and settle” mischief of the Obama era becomes more glaring with each new political appointment, as Biden stacks his team with professional environmental activists who bring conflicts of interest with them when they pass through the revolving doors at key regulatory agencies.
For example, Biden’s pick to advise the Bureau of Ocean Energy Management is leaving her post as an Earthjustice attorney. Just last year, Earthjustice initiated a lawsuit to halt offshore drilling in the Gulf of Mexico under the guise of the Endangered Species Act. Who did Earthjustice sue? The Bureau of Ocean Energy Management, of course. If Earthjustice is at all successful in its lawsuit, it will likely be paid by the agency. Indeed, in 2020 alone, Earthjustice received over $5.8 million in court-awarded attorneys’ fees.
Biden’s choice to be principal deputy solicitor of the Department of Interior was formerly a litigator with the Native American Rights Fund (which has applauded Biden’s economy-crushing move to revoke the Keystone XL Pipeline permit), which received over half a million dollars in attorneys’ fees from Uncle Sam in 2019 (2020 payouts are not yet reported).
Biden’s new principal deputy assistant secretary of Fish and Wildlife and Parks formerly belonged to the World Wildlife Fund, which in 2019 received over $34 million in government grants.
Similarly, one of Biden’s choices to lead the Council on Environmental Quality was formerly the director of the Southern Environmental Law Center. She is now set to “scrap” the Trump administration’s streamlined permitting process for oil and gas developers. SELC, an aggressive environmental law firm openly opposed to fossil fuels, collected over $700,000 in court-awarded attorneys’ fees in 2019. With their former director now in a federal position of power and her friends in position to sue her, it will be even easier to scrap the energy industry into overregulated oblivion and maybe even to line their pockets while they’re at it.
Here’s how the “sue and settle” game works, for those unfamiliar with it.
A federal agency and its special-interest group allies want to implement a rule, but are stymied by the administrative process, lack of funding, or some such bother. The special-interest group, probably run by a friend of an agency decision-maker, sues the agency.
The agency and special-interest group enter into settlement discussions — think proverbial smoke-filled backroom where real power resides. There is no public notice of the discussions and no dissenting viewpoints providing alternative considerations.
Unsurprisingly, the agency and special-interest group reach a settlement — the agency will do what it wanted in the first place, possibly more. The parties present their settlement for court approval, invoking the force of sanctions if the agency fails to uphold its “bargain.” The agency then cuts a taxpayer-funded check to pay the special-interest group for bringing the suit in the first place.
Now that is a sweet deal, and it is classic collusion. It is fraud on the court, which only has power to resolve actual cases or controversies; and it is fraud on the American public, which has an interest in transparent, well-informed rulemaking.
And this is not a conspiracy theory. In 2015, the U.S. Senate Committee on Environment and Public Works published a report finding that sue and settle provided activists “significant leverage” to drive and influence rulemaking. The report, subtitled “An account of Collusion, Cutting Corners, and Costing Americans Billions,” found that the Environmental Protection Agency “rushed into a ‘sue-and-settle’ agreement . . . with little regard to the technical, legal, and policy challenges” of the new rules it adopted as a result. Further, the rules “were the product of the quintessential ‘sue-and-settle’ scheme” whereby the agency and its special-interest allies “negotiate behind closed doors, changing regulatory actions . . . without providing the public meaningful notice or opportunity to comment.”
The U.S. Chamber of Commerce, the Western Energy Alliance, and others repeatedly have issued reports about past sue and settle abuses, which are said to have reached “an art form” during the Obama administration. But they will likely make a big comeback as the Biden administration begins to fill agencies to the brim with activist environmentalists and the organizations these activists were plucked from seek to reap the benefits of crony-esque appointments.
If the mainstream media looks the other way now that a “boring” person occupies the Oval Office, the potential for a flood of collusive settlements between activist environmentalists and federal agencies grows. With limited accountability, the opportunity to change federal policy — and to be compensated for it — without a single call to a congressman or a single petition to an agency, who wouldn’t be enticed?
I hope in four years I can write about how the Biden administration overcame these temptations and proved worriers like me wrong, but we can’t leave that to chance. It is time for a renewed media and congressional scrutiny of the insider game called sue and settle.