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.