When federal agencies can’t justify an
action through normal channels, they seem to invite lawsuits from
environmental groups, the settlement of which allows the agency to
obtain court sanctioned, negotiated settlements that bypass input from
affected parties and the public.
The U.S. Chamber of Commerce notes that
this tactic is most often used by the EPA and U.S. Fish & Wildlife
Service and somewhat less often by U.S. Forest Service, the Bureau of
Land Management, the National Park Service, the Army Corps of Engineers,
the U.S. Department of Agriculture, and the U.S. Department of
Commerce. The Sierra Club is the most often used partner in this scam,
closely followed by the WildEarth Guardians, the Natural Resources
Defense Council, and the Center for Biological Diversity.
This “sue and settle” tactic is made
possible due to the structure of environmental laws which not only get
the Feds what they want, but also enriches environmental groups while at
the same time hindering the legitimate function of the government
agency. For instance, the Endangered Species Act is used as a money
generator for such groups. The structure of the law makes it easy for
environmental groups to game the system. According to attorney Karen Budd-Falen,
“Species are listed by a petition process, which means that anyone can
send a letter to the federal government asking that a species, either
plant or animal, be put on the ESA list. The federal government has 90
days to respond to that petition, no matter how frivolous. If the
federal government fails to respond in 90 days, the petitioner – in the
vast majority of cases, radical environmental groups – can file
litigation against the federal government and get its attorneys fees
paid. The simple act of filing litigation does not mean the species will
get listed or that it is warranted to be protected; this litigation is
only over whether the federal government failed to respond to the
petition in 90 days. Between 2000 and 2009, in just 12 states and the
District of Columbia, 14 environmental groups filed 180 federal court
complaints to get species listed under the ESA and were paid $11,743,287
in attorneys fees and costs.” The burden of responding to the many
lawsuits causes government biologists to spend much less time on
conservation work.
The U.S. Chamber of Commerce opines that
“As a result of the sue and settle process, the agency intentionally
transforms itself from an independent actor that has discretion to
perform its duties in a manner best serving the public interest into an
actor subservient to the binding terms of settlement agreements, which
includes using congressionally appropriated funds to achieve the demands
of specific outside groups. This process also allows agencies to avoid
the normal protections built into the rulemaking process, review by the
Office of Management and Budget and the public, and compliance with
executive orders, at the critical moment when the agency’s new
obligation is created.”
A major concern is that the sue and
settle tactic, which has been so effective in removing control over the
rulemaking process from Congress, and placing it instead with private
parties under the supervision of federal courts, will spread to other
complex statutes that have statutorily imposed dates for issuing
regulations, such as Dodd-Frank or Obamacare.
The Chamber says that it is important to
fix this culture of “sue and settle” because: “Congress’s ability to act
on or undertake oversight of the executive branch is diminished and
perhaps eliminated through the private agreements between agencies and
private parties. Rulemaking in secret, a process that Congress abandoned
65 years ago when it passed the Administrative Procedure Act, is
dangerous because it allows private parties and willing agencies to set
national policy out of the light of public scrutiny and the procedural
safeguards of the Administrative Procedure Act.”
Read the full report from the U.S. Chamber of Commerce here.
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