End Sue and Settle, Forever!!!

 By Rich Kozlovich

Mike McDaniel published this piece, Another DOGE priority: Sue and Settle, saying:

Sue and Settle is a great scam for lawyers and greenie Luddites in government and the private sector determined to return the world to a pristine, per-industrial state.....

He goes on to show just how corrupt and profitable this has been for these irrational, misanthropic, and morally defective green activists, and really big winners, their attorneys, who've racked up 18 million dollars between 2013 and 2022.   In 2018 the Director of EPA at that time made it clear the first Trump administration's position was: “The days of regulation through litigation are over.”  Unfortunately, as was noted in the Buckeye Institute news release the Biden administration did away with that:

........federal regulators are sometimes “only too happy to face collusive lawsuits by friendly ‘foes,’” Grossman told the Subcommittee that the U.S. Environmental Protection Agency entered into “more than sixty such settlements” in the first term of the Obama Administration alone, forcing the EPA to publish more than one hundred new regulations “at a cost to the economy of tens of billions of dollars.” Upon entering office, Grossman noted that the Trump Administration ended the abuse of sue and settle, declaring, “The days of regulation through litigation are over.” Unfortunately, the Biden Administration quickly revived the practice.

This has been going on for many years, here's my  file, going back to 2011.  In 2012 my now passed friend Alan Caruba posted this article, The Courts and the EPA showing the depth of corruption behind all this saying:

 

 The EPA actually encourages environmental groups to sue in order to enter into consent decrees to “settle” the case in a manner they prefer. For decades, environmental groups have reaped millions in taxpayer dollars by accommodating the agency in this fashion. A case in point is the Environmental Defense Fund that received $2.76 million in grants over the last decade while at the same time suing the EPA over various issues. 

 

In 2015 Time for Congress to defund "sue and settle", saying:

 

In July, Representative Lynn Westmoreland (R-Ga.) took on the little known radical environmentalist scam known as “sue and settle” where a green group acting in cahoots with the EPA or U.S. Fish and Wildlife Service sues the Agency demanding that they apply the law in a new, expanded way that increases the agency’s jurisdiction............The Westmoreland defund amendment to the Interior Department appropriation bill would have rolled back this abuse of taxpayer funds by denying the payment of attorney fees in ‘sue and settle’ cases. This action is needed to stop this Obama Administration orchestrated expansion of executive power....... (Editor's note: The link to the original article no longer works and it appears the original is now gone.  All that's left is my link and the paragraphs I posted. RK)

For 40 years I was an exterminator, this was a problem for decades. One of the many problems with EPA is it's filled with green activists who've actively colluded with the environmentalists. While during the first Trump administration they attempted to do away with this corruption it never goes away because these green moles at EPA merely hunker down until the political climate changes and then start all over again.

These sue and settle scams gave the greenies what they wanted, money and destructive power over America's economy, and it gave EPA what it wanted, power the Congress never voted on, or intended for them to have.  The Loper Bright v. Raimondo ruling that overturned the is a massive gift to those who wish to end this insanity.

 

The solution is getting rid of the EPA. My passed friend Dr. Jay Lehr was one of the founders of EPA and said it had been taken over by radicals and hadn't done anything worthwhile since 1980 and put together a five year plan to dismantle it.  As time has gone by I realized that plan, with some variations, was workable to dismantle all these federal agencies.   All that it takes is vision and courage

 

Buckeye Institute Press Release

 

FOR IMMEDIATE RELEASE June 6, 2023

Lisa Gates, Vice President of Communications, (614) 224-3255

The Buckeye Institute Testifies Before Congressional Committee Columbus, OH – On Tuesday, The Buckeye Institute testified (download a PDF) before the U.S. House of Representatives Subcommittee on the Constitution and Limited Government, a subcommittee of the U.S. House Judiciary Committee.   In his testimony, Andrew M. Grossman, a senior legal fellow at The Buckeye Institute, highlighted the “use and abuse of ‘sue and settle’ tactics in litigation against the government,” which Grossman noted, “seeks to compel [federal] agency action, set agency priorities, and (in some instances) influence the content of regulations or other agency actions.”   Noting that the federal regulators are sometimes “only too happy to face collusive lawsuits by friendly ‘foes,’” Grossman told the Subcommittee that the U.S. Environmental Protection Agency entered into “more than sixty such settlements” in the first term of the Obama Administration alone, forcing the EPA to publish more than one hundred new regulations “at a cost to the economy of tens of billions of dollars.” Upon entering office, Grossman noted that the Trump Administration ended the abuse of sue and settle, declaring, “The days of regulation through litigation are over.” Unfortunately, the Biden Administration quickly revived the practice.   Grossman went on to outline “common-sense reforms” that Congress can adopt to “provide for transparency and accountability in settlements and consent decrees,” recommendations which were “reflected in the Sunshine for Regulatory Decrees and Settlements Act.” Grossman also urged Congress to consider a more comprehensive approach that “limits the ability of third parties to compel Executive Branch action” and would ensure that “the public interest” wasn’t subordinated to “special interests.”   Congress isn't the only government institution that can act. Grossman recommended the Department of Justice readopt the Meese Policy. Named after Edwin Meese III, U.S. attorney general under President Ronald Reagan, the policy addressed the “fundamental problem of sue and settle” and “block[ed] agencies from relinquishing their discretionary authority to outside groups.” Grossman noted, “An administration that embraces the Meese Policy will benefit from greater flexibility, improved transparency, and, ultimately, better policy results.”   In closing, Grossman reminded the Subcommittee that “collusive settlements that govern the federal government’s future actions raise serious constitutional and policy questions” and “evade democratic accountability.”   In addition to serving as a senior legal fellow at Buckeye, Grossman is an adjunct scholar at the Cato Institute and a partner in the Washington, D.C., office of Baker & Hostetler LLP. # # #

Founded in 1989, The Buckeye Institute is an independent research and educational institution – a think tank – whose mission is to advance free-market public policy in the states. The Buckeye Institute is a non-partisan, non-profit, and tax-exempt organization, as defined by section 501(c)(3) of the Internal Revenue code. As such, it relies on support from individuals, corporations, and foundations that share a commitment to individual liberty, free enterprise, personal responsibility, and limited government. The Buckeye Institute does not seek or accept government funding.

Donate Today! Support The Buckeye Institute

       

Banning Modern Agriculture and High Crop Yields?

Paul Driessen July 25, 2022

In just seven decades, America’s conventional (non-organic) farmers increased per-acre corn yields by an incredible 500% – while using steadily less water, fuel, fertilizer and pesticides – feeding millions more people. Among the many reasons for this miracle is their ability to control weeds that would otherwise steal moisture and nutrients from this vital food, animal feed and fuel (ethanol) crop. 

Long-lasting herbicides don’t just control weeds. They also promote no-till farming, which helps farmers save costly tractor fuel and avoid breaking up soils – thereby reducing erosion, retaining soil moisture, safeguarding soil organisms, and locking carbon dioxide in the soil (reducing risks of “dangerous manmade climate change,” some say). 

In the United States, the second most widely used herbicide after glyphosate (Roundup) is atrazine, which is critical to controlling invasive and hard-to-kill weeds impervious to other herbicides. Atrazine is used on 65 million acres of corn, sorghum and sugarcane. That’s equivalent to Colorado or Oregon, on croplands scattered across a dozen Midwestern states. It’s also used on millions of acres of golf courses, lawns and highway medians nationwide.

The US Environmental Protection Agency (EPA) has periodically reviewed atrazine science – which now comprises more than 7,000 studies over the past 60 years. It has found the herbicide is safe for people, animals and the environment. 

But that hasn’t stopped the Center for Biological Diversity (CBD), Pesticide Action Network (PAN) and other groups from campaigning to have atrazine banned outright or regulated into oblivion. 

Extreme environmentalists also oppose fossil fuels, genetically engineered crops, and manmade fertilizers and insecticides. But they are silent about dangerous “natural” organic pesticides, including many that are lethal to bees and fish – and about cadmium and other toxic metals that can leach out of solar panels dumped in landfills – even though all these toxic chemicals could end up in our waterways. 

Last year, I explained how activists successfully used collusive sue-and-settle lawsuits to force EPA to develop a formal process for evaluating whether endangered species were “likely” to be “adversely affected” by exposure to common pesticides. Facing court-ordered deadlines for completing the new assessments, the agency unsurprisingly found that the vast majority of species would “likely be adversely affected” by herbicides and other pesticides. 

But it did so by employing the standard that even one affected plant or animal of a species would trigger prohibitions on using the chemicals. EPA also utilized hopelessly deficient satellite imagery, statewide crop and atrazine data, toxicity studies of unrelated laboratory animals, computer models, and best guesses. The garbage-in/garbage-out exercise bears little relation to real-world use, exposure or risks. 

CBD, PAN and other anti-pesticide groups recently sued EPA again, in the Ninth Circuit Court of Appeals. EPA used the lawsuit to justify asking the court to order the agency to “reconsider” a 2019 regulation. So now EPA has proposed that detectable levels of atrazine in US aquatic ecosystems must not exceed the astonishingly low average level of 3.4 parts per billion (ppb) over a 60-day period. 

EPA calls this the “concentration equivalent level of concern,” or CE-LOC. But 3.4 ppb is equivalent to 3.4 seconds in 11,500 days – nearly 32 years! Atrazine isn’t plutonium. It’s been used and studied since 1958. To suggest that 3.4 ppb could devastate American ponds and rivers defies reason, and science. 

These outfits aren’t even dealing with actual field or pond observations and evidence of harm. They’re talking about extrapolations, backed up mainly by secretive models, conjectures and activist pressure. However, the effects on American agriculture are likely to be profound, and widespread. 

This focus on protecting aquatic life goes back two decades or more; it is so “inside baseball” in its details and complexity that eyes roll and readers fall asleep. The essence is this. Barely three years ago, EPA set the atrazine CE-LOC at 15 ppb, based on a host of government, academic, industry and activist studies and comments. Even the US Geological Survey and Agriculture Department weighed in. Prior to that, it was the still-reasonable level of 10 ppb. 

In 2016, EPA proposed but ultimately rejected the 3.4 ppb LOC, after numerous farmers and scientific groups pointed out the shoddy methods and poor science the agency used to get there. But this June 30 – employing the court order that the agency itself asked for – EPA “re-evaluated” its decision. The agency dishonestly claimed it had intended all along to set that extremely low standard, and presented its decision for public comment, almost as a fait accompli. 

Anticipating the uproar its proposal would cause, EPA said it would seek “external peer review” of its aquatic species risk assessment and 3.4 ppb decision. But this is a far cry from having a formal, balanced  Scientific Advisory Panel do a full, impartial, scientific review, under standards actually set by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). 

This 3.4 ppb LOC will result in major restrictions on atrazine use and/or necessitate extensive, expensive measures by farmers to control runoff – all based on estimated, predicted, computer-generated atrazine levels across multi-county or multi-state watersheds in which atrazine-based herbicides are used on acreage in who-knows-what proximity to those watersheds. 

The near-zero LOC amounts to an effective ban on using atrazine-based  herbicides – amid growing international grain shortages, widening hunger, soaring fuel and fertilizer prices, increasing mandates to turn more corn into ethanol (to replace “non-renewable” gasoline), and other important considerations. 

This Biden EPA decision certainly looks like a “major federal action,” representing a “transformative expansion” in EPA’s regulatory authority, and raising “major questions” about what specific language in FIFRA gives EPA such enormous, unprecedented authority. It would certainly seem that this 3.4 ppb edict defies the legal standards just recently articulated by the US Supreme Court in West Virginia v. EPA, regarding the agency’s asserted authority to regulate power plants in the name of climate change – wherein the court used precisely those quoted terms to reject EPA’s arrogation of authority. 

EPA’s proposed standard would certainly result in significant regional and national political, economic and agricultural consequences. It would certainly affect a significant segment of the US economy – and intrude into arenas that are the province of the US Departments of Agriculture and Energy. It would also undermine EPA’s own climate change mitigation and prevention initiatives. 

America’s premier environmental agency seems to be telling the Supreme Court, try and stop us again. 

Biden Administration policies have already made energy insanely expensive (up to $5 a gallon for regular and $9 in some California cities), created supply chain crises for baby formula and other essential consumer goods, and sent inflation soaring to 9.1% annualized, compared to 1.5% in January 2021. These policies are battering millions of American families. 

The President just returned from Saudi Arabia, where he begged the king and prince to produce more oil, so that Team Biden can continue restricting production of America’s own vast petroleum resources. This is embarrassing, demeaning, hypocritical and destructive. 

Amid widespread hunger in Sri Lanka, and even in Germany and the UK, due to extreme green policies, Team Biden seems to think it should cause still more damage – and must kowtow more to extremists.

As the nation flirts with the possibility of recession, would Team Biden really risk another Depression Era Dust Bowl – which occurred in part because of too much plowing, amid still-record high temperatures and droughts decades before anyone conceived of manmade, fossil-fuel-driven climate crises? 

This 3.4 ppb LOC is bad science, bad policy, bad agriculture, bad economics, and perverse morality. Anyone wishing to weigh in on the proposal can submit comments until September 6. 

Paul Driessen is senior policy advisor for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of books, reports and articles on energy, environmental, climate and human rights issues.

 

Two Nuclear Options

Paul Driessen

We’ve heard about “nuclear options” since Harry was still Senator Reid. America now faces two major nuclear options: one involves political power, the other power to run an energy-dependent economy. In the political arena, President Biden and his allies are already going nuclear.

With a resurgent Deep State to back it up, Team Biden-Harris is purging NRLB and other officials, putting America back under the thumb of theParis climate treaty, and issuing executive diktats to block theKeystone Pipeline and oil and gas leasing, drilling, fracking and production (among many others).Thousands of high-pay jobs will be gone almost instantly, hundreds of thousands, then millions more over the next few years – along with tens of billions of dollars in state and federal royalty and tax revenues.

Biden may nominate “the most diverse Cabinet in history” – by race, sex and sexual preference. But there will be no diversity in thought or speech. Every nominee is a True Believer in “climate chaos” and our supposed ability to control Earth’s climate by “transitioning” America to “clean, renewable” energy:

Gina McCarthy as National Climate Advisor, John Kerry as Presidential Climate Envoy, Michael Regan to run EPA, Jennifer Granholm at Energy, Pete Buttigieg for Transportation, Debra Haaland to head Interior, and many more, even at Defense and USAID. Climate will drive energy and economic policy, while Big Media and Big Tech promote the Biden agenda and censor and silence climate chaos skeptics, Republicans and other conservative voices in the USA and beyond. So much for democracy and unity.

They’ll likely resurrect sue-and-settle lawsuits, whereby environmentalist groups sue government agencies to impose rules that the litigators and regulators both want but can’t get through the rulemaking process. The parties find friendly courts, and the government agency agrees to settle the cases on previously agreed terms. The Paris treaty will give the climate litigation industry countless opportunities.

Their goal is to hyper-regulate and lock up as many fossil fuels as possible right away, then ban internal-combustion vehicle sales by 2035 and eradicate US oil, natural gas and coal use by 2050. That’s 80% of the energy that powers America’s industries, jobs, homes, hospitals and living standards. Gone.

Covid lockdowns will become a test run of our submissiveness to their demands – and of their ability to dictate how much and what kind of energy, houses, cars, jobs, food and freedoms we “are permitted” to have. Families hammered by the lockdowns will be pounded harder and longer.

Congress is also preparing to go full nuclear. House Speaker Nancy Pelosi is readying her own juggernaut, while Senator Chuck Schumer has vowed he’s “not busting [his] chops to become majority leader to do very little or nothing.” Eliminating the filibuster could be the harbinger of a Green New Deal that many Democrats view “as a how-do-you-change-the-entire-economy thing.”

Citing computer models and studies that often hide data and misrepresent planetary reality, they insist we face a climate crisis that justifies radical action. However, as climatologist Dr. Roy Spencer points out, climate models now produce and predict “at least twice as much warming” as we are actually seeing. There simply is no climate emergency:not in temperatures and not in hurricanes, tornadoes, floods, droughts, wildfires or other supposedly CO2-driven events.The climate catastrophes are make-believe.

They also insist the rest of the world will “follow our example.” In the real world China, India and other countries are building thousands of coal and gas-fired power plants and putting millions of non-electric cars on their roads. Those countries want electricity, jobs, mobility and modern living standards. They are not bound by Paris emission limits or timetables, and don’t intend to be bound. They know fossil fuels are the key to better lives, while wind and solar would perpetuate poverty, misery and frequent blackouts.

Perhaps most amazing of all, they’ve talked themselves into believing we can quickly, easily, affordably and ecologically replace US (and global) fossil fuels with wind, solar, battery and biofuel power. They have no concept of how monumental that task would be. Just for the United States, we would have to replace7.5 billion megawatt-hours per year in electricity and electricity-equivalent coal, oil and natural gas in today’s vehicles, factories, heating, cooking and numerous other uses. This doesn’t even include petrochemical feed stocks for paints, plastics, pharmaceuticals, synthetic fibers and other products.

We’d be trading affordable 24/7/365 reliability for expensive, subsidized, weather-dependent energy. They talk as though it would require an easily manageable, barely noticeable number of wind turbines, solar panels, backup batteries, transmission lines, and corn and soybean farms. Do the math – and factor in the need to install many turbines, panels and biofuel farms in suboptimal areas. We’re looking at industrial energy facilities, mining and factories at scales never before seen in human history. US and global impacts on scenery, habitats, wildlife, and air and water quality would be devastating.

Thankfully there is a second nuclear option. If Team Biden-Harris is determined to eliminate fossil fuels, it could do more to promote nuclear power. So could Africa– and Europe, Asia and the rest of the world. Nuclear technologies are advancing rapidly, and modern nuclear power plant designs are vastly superior to (and less expensive than) any built previously.

Generation 3 and 4 plants have built-in passive safety features that prevent core meltdown. Small Modular Reactors (SMRs) can be as small as 100 MW. One can power a town, more can be added as power needs grow, and several can be coupled together to power a large metropolis. Pebble Bed Modular Reactors use uranium in the form of pellets the size of sugar grains, each one specially coated and then bonded into graphite balls the size of cricket or lacrosse balls. Other technologies are also in the works.

In the past, the US built huge one-of-a-kind plants, like the Palo Verde plant outside Phoenix, AZ:  three 1,270-MW reactors generating 32 million MW-hours annually. They typically took years to build, after a decade of reviews, permitting and litigation. Today we could use a “fleet approach” to construct the same proven, safe designs over and over, often by same experienced crews.

Multiple advanced reactor designs by American companies are already in various stages of development. Holtec International is trying to wrap up research and development on a modern “next generation” SMR-160 that could be built in Lacey Township, NJ, where the 636-MW boiling water Oyster Creek nuclear plant used to operate. It would power about 160,000 homes and uses no pumps or valves; all its key components, including cooling water, are sealed inside containment facilities. 

The Nuclear Regulatory Commission has given design approval to NuScale Power’s light-water reactor, and to Oklo Power for one of the first nuclear designs that does not use water as a coolant. (It’s gas-cooled.) Oklo, NuGen and other companies are also building 1.5 to 20-MW “microreactors” that could be employed in outer space and remote off-the-grid communities, mining operations, industrial facilities and military bases. The US Department of Energy recently awarded a grant for a demonstration program for non-light water reactors that could be operational within seven years.

They are fascinating prospects – whether driven by “the climate crisis” or other reasons. And while some will continue to worry about nuclear power being “a threat to health and safety,” Team Biden-Harris, Congress, environmentalists and the citizenry at large must all acknowledge a central reality. It’s relatively easy to lock up and shut down fossil fuels. Replacing them is costly and difficult.

Old nuclear certainly has its perception and safety issues, though very few people died from even the most widely publicized accidents at Chernobyl and Fukushima. Modern nuclear power plants promise to be far better, safer, cost-effective and reliable sources of abundant, affordable, CO2-free electricity.

However, pseudo-renewable energy brings its own problems: millions of turbines far taller than the Washington Monument; billions of panels sprawling across tens or hundreds of square miles; thousands of 1200-pound battery modules in warehouses, waiting to ignite monstrous fires;Chinese and Third World mines, replete with land destruction, pollution and human rights violations.There is no free lunch.

Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow and author of books and articles on energy, environment, climate and human rights issues.

 

Improving the Interior Departments Science and Policies

H. Sterling Burnett @ Heartland Insititute

The U.S. Department of Interior (DOI) is taking a page out of the U.S. Environmental Protection Agency’s (EPA) playbook, to improve the transparency behind the science used to develop regulations on the millions of acres of public lands it controls, and the legal actions it takes in response to lawsuits filed against it.

On September 11, Interior Secretary Ryan Zinke signed a Secretarial Order promoting transparency and accountability in consent decrees and settlement agreements, aimed at ending secret “sue and settle” deals with activist plaintiffs.

Zinke’s order comes almost a year after the EPA issued rules ending such agreements at the agency.

DOI reports from January 1, 2012 through January 19, 2017, Interior entered into more than 460 settlement agreements and consent decrees, resulting in the payment of more than $4.4 billion to plaintiffs, while keeping key provisions of these agreements secret. In President Barack Obama’s last year in office, Interior entered into 96 such agreements or decrees, costing taxpayers more than $1.7 billion.

Although consent decrees and settlements may sometimes be a prudent way to avoid costly litigation in cases DOI is likely to lose, Zinke notes, “concerns have been raised” DOI has used secret settlement agreements to undermine the safeguards Congress established to ensure public input into policymaking.

Order 3368 requires DOI to file public notice of all litigation, proposed settlement agreements, and consent decrees in the Federal Register. Another provision establishes a process for public input before Interior can approve a settlement with significant policy implications or large payouts.

The order requires DOI to establish a publicly accessible “Litigation” webpage linked in the federal Office of the Solicitor’s homepage. Entries on this page must include the names of the parties involved in litigation, the case number, the date filed, the court where the complaint was filed, and the statutory or regulatory provisions at issue in the complaint.

By December 11, 2018, the Solicitor’s office must begin compiling, and the Chief Information Officer to begin posting, a searchable list of final judicial and administrative consent decrees and settlement agreements governing DOI’s actions. The summaries must include a brief description of each decree or agreement, details of any attorney fees or costs paid, and a link to the text of the decree or agreement.

Also, within 15 days of receiving service of a complaint or petition for review of a law or regulation, the Solicitor must notify any state or tribe possibly affected by a pending complaint or petition, except when the state or tribe is a party to the petition.

An example of how this may work comes from EPA’s website, which now includes a page titled “Notices of Intent to Sue the U.S. Environmental Protection Agency,” providing details of nearly 300 notices of intent to sue, mostly from citizen groups plus a few from state and local governments, with a separate table listing about 380 active environmental cases, and a third table providing details of 15 finalized consent decrees and settlement agreements.

In another pro-transparency, pro-accountability move, in the last week of September, DOI followed EPA’s lead once again, implementing a new policy intended to improve the transparency, integrity, and quality of the science its agencies use to make decisions. Going forward, officials may use only scientific studies or findings the underlying data for which are publicly available and reproducible, with few exceptions. EPA proposed a similar policy earlier in 2018.

DOI’s policy covers the science used by the wide variety of bureaus under its jurisdiction, including the Bureau of Land Management, the National Park Service, the U.S. Fish and Wildlife Service, and the U.S. Geological Survey, affecting the science used to shape policies ranging from endangered species determinations and protections—such as the decision to list polar bear populations as endangered based on speculative future risks from climate change even while their numbers are increasing—to decisions about grazing, hunting, mining, and oil and gas production on public lands and offshore. Under the new policy, the climate science used to justify any future actions by DOI to close public lands or offshore areas to oil and gas development, or impose more stringent limits on greenhouse gas emissions from those operations, would now be open to review by the public, including outside scientific auditors.

Announcing the policy, Deputy Secretary David Bernhardt said the order is intended to ensure Interior “bases its decisions on the best available science and provide[s] the American people with enough information to thoughtfully and substantively evaluate the data, methodology, and analysis used by the Department to inform its decisions.”

People have a right to know what their government is up to, yet under previous presidents the science used to justify regulations and policies and the terms of settlement agreements at DOI often blindsided local, state, and tribal governments, industries, public land lessors, and private land owners adjacent to public properties, imposing huge costs on them with little or no notice, based on science hidden from public view. This was unfair, amounting to regulation behind closed doors.

These orders should improve the transparency and soundness of DOI’s policies by giving the general public, we who pay DOI’s bills and for whom they are supposed to work, some input into its decisions.

Trump’s DOI is giving the government back to the people, or at least ensuring we have oversight of and influence on it. Only environmentalists and crony capitalists who historically, in secrecy, have wielded inordinate power over government policy could be opposed to that. Every other department and agency should adopt similar policies.

So long to 'sue and settle' at the EPA

by Ben Hurst March 13, 2018

“The days of regulation through litigation are over.” So said EPA Administrator Scott Pruitt in October 2017.  His intentions were right, but the bitter aftertaste of "sue and settle" lingers on. In Missouri, we labor still under the yoke of such regulation.

In February 2016, a special interest group filed a lawsuit asking a federal court to order an all-too-willing EPA to promulgate new rules for nutrients in Missouri lakes. In December 2016, the EPA agreed to issue new rules by December 2017 — warp speed for a rulemaking concerning more than 2,482 reservoirs in three different ecoregions — and, as often happens in these cases, paid for the special interest group’s attorneys’ fees to boot. The court blessed the “settlement” and issued an order with the force of law.

So, a special interest group thinks Missouri needs nutrient criteria, and now it will get them, with free two-day shipping.

The problem is that, other than a half dozen activists in St. Louis and one judge in Jefferson City, none of Missouri’s six million citizens ever had any say in the matter. Those remaining six million Missourians have real and substantial interests, both in their waterways and in the use of their other resources that are no less important than those of special interest groups in St. Louis.........To Read More.....

Time to get them off our gravy train

Sue and settle schemes reward pressure groups, and hurt the rest of America

 

Greg Walcher

 

EPA Administrator Scott Pruitt recently issued a directive to end a 20-year string of “sue and settle” cases that have funneled untold millions of tax dollars to environmental organizations. Predictably, those groups and their allies have been apoplectic about it.

 

Many of these groups have grown from grassroots citizen movements to gigantic cash-flush conglomerates, with much of the cash coming from the government they appear or pretend to be fighting. Many now have separate legal arms with hundreds of attorneys, whose primary job is to sue the government and keep the cash flowing. They are part of the $13-billion-per-year U.S. environmental industry and lobby.

 

These organizations vehemently object to the phrase “sue and settle,” claiming it oversimplifies a very complex legal procedure. But in fact, the strategy isn’t really very complicated at all.

 

Congress has created a mess, with all sorts of processes and procedures agencies must follow in making rules and decisions. Every step of the way, those decisions are subject to potential lawsuits. For entirely different reasons, Congress also authorized the government to pay the legal bills of people who are forced to sue to defend their interests against government overreach.

 

It didn’t take long for clever organizations, and their allies in government, to figure out how to turn that combination into a massive public policy ATM that gives them our money to finance their ideologies, disinformation campaigns, and more activism.

 

Government officials sometimes get frustrated by that pesky process required to make decisions that they think should be quick and easy. That’s where “sue and settle” comes in.

 

A “friendly” organization files a lawsuit demanding the very action the officials want to take anyway. So the government agency reaches an out-of-court settlement – often in a carefully selected friendly court – in which the agency agrees to the action demanded by the lawsuit, and agrees to pay the organization’s legal fees as part of its penance.

 

The court agrees to the settlement, part of which often seals the details (such as legal fees), making it difficult for anyone to track these deals. The parties who are most directly affected by the decisions are left out of the process; they never get to testify, never get their day in court, because the case was settled without going to court.

 

About 20 years ago, government agencies stopped collecting data on these settlements, so that they were no longer “able to” (or had to) report to Congress on the amount of money involved, or the groups to whom our tax money was being paid. Long-time observers know it amounts to hundreds of millions of dollars over the years, and the recipients are mostly large environmental organizations.

 

Mr. Pruitt was right to direct an end to such abuses. Almost immediately, a group of 58 former EPA attorneys wrote a letter sharply criticizing his action, arguing that ending the practice will somehow harm the American people, as well as “fair and efficient operations” at EPA. Their letter is 13 pages long and has 23 footnotes, but you have to expect that from lawyers. For anyone who cares to wade through all the verbiage, their explanation is very telling.

 

The lawyers accuse Pruitt of “attempting to give regulated parties a special and powerful seat at the table with no corresponding role for other members of the pubic.” In other words, in their view, people who have no direct stake in the ruling should have the same seat at the same table as those directly affected.

 

They also claim the new directive does “a grave injustice by alleging, without evidence, collusion with outside groups.” They should know; these are some of the same folks who made sure that allegation would be “without evidence,” by hiding the attorney fees, other financial payments and other details of these settlements from Congress and the public.

 

Most telling of all, though, is this little gem from page eleven: “It is EPA's failure to comply with legal requirements that is the problem, not the people who sue EPA….”

 

That is a remarkable contradiction from the letter’s signatories, who began by claiming the Pruitt directive would harm “fair and efficient operations” at EPA. That is, operations under rules that they devised to serve themselves and their allies, agendas and ideologies, especially during the Obama years.

 

Two more things you should know about the 58 former EPA employees who signed the letter. First, they are partisans who regularly criticize the current Administration. Most of the same people signed a similar letter on April 27, titled “Earth Warms While Trump Ignores Science,” as well as a February 15 letter to senators opposing Pruitt’s confirmation.

 

Second, and perhaps more important, they are environmental attorneys who object to ending the secretive gravy train that has paid the salaries of environmental attorneys for years. Could some of them now be working for organizations that sue the government, hoping to get their own “fair share” of these lucrative settlements? Might their paychecks actually depend on that very system?

 

“Sue and settle” is a gravy train never envisioned by Congress. It cannot withstand public scrutiny.

 

These attorneys ought to recall, and adhere to, the ethics of “Paper Chase” star John Housman, who once touted financial managers who “make money the old fashioned way – they earn it.”

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Greg Walcher (www.GregWalcher.com) is president of the Natural Resources Group and author of “Smoking Them Out: The Theft of the Environment and How to Take it Back,” now in its second printing. He is a former head of the Colorado Department of Natural Resources.