{"id":1458650,"date":"2024-02-22T03:20:00","date_gmt":"2024-02-22T08:20:00","guid":{"rendered":"https:\/\/bugaluu.com\/news\/?p=1458650"},"modified":"2024-02-22T03:20:00","modified_gmt":"2024-02-22T08:20:00","slug":"sue-and-settle-looks-to-some-like-crony-democracy-and-under-bidens-lawfaring-eco-politics-its-back","status":"publish","type":"post","link":"https:\/\/bugaluu.com\/news\/sue-and-settle-looks-to-some-like-crony-democracy-and-under-bidens-lawfaring-eco-politics-its-back\/1458650\/","title":{"rendered":"‘Sue And Settle’ Looks To Some Like Crony Democracy… And Under Biden’s Lawfaring Eco-Politics, It’s Back"},"content":{"rendered":"

‘Sue And Settle’ Looks To Some Like Crony Democracy… And Under Biden’s Lawfaring Eco-Politics, It’s Back<\/span><\/p>\n

\n

Authored by James Varney via RealClear Wire<\/a>,<\/em><\/p>\n

When the Biden administration announced in 2022 that it would remove some 4 million acres of federal land in Western states from oil and gas exploration, environmental groups hailed the decision as a milestone in their fight against global warming.<\/strong><\/p>\n

<\/a><\/p>\n

\u201cWith the oil and gas industry bent on despoiling American\u2019s public lands and fueling the climate crisis, this is a critical opportunity for the Biden administration to chart a new path toward clean energy and independence from fossil fuels,\u201d said Jeremy Nichols, a director with WildEarth Guardians<\/a>.<\/p>\n

But Nichols could just as easily have slapped himself on the back: The administration\u2019s move was part of a private settlement of a lawsuit<\/a> filed by WildEarth and others over the objections of energy consortiums, whose efforts to intervene in the matter were dismissed.<\/p>\n

A similar thing happened last August, <\/strong>when the Biden administration announced\u00a0it had\u00a0agreed to exclude 6 million acres of the energy-rich Gulf of Mexico seabed from exploration to settle a lawsuit<\/a> brought by environmental groups, including the Sierra Club<\/a> –\u00a0an announcement that triggered operational delays for the industry and expensive litigation to overturn.<\/p>\n

Administration critics say these moves reflect the resurgence of a practice embraced by the Obama administration and rejected during Donald Trump\u2019s presidency: \u201csue and settle.\u201d The tactic is simple: An advocacy group sues a federal agency for failing to enforce laws or regulations. Agency officials and the plaintiffs then come to a private agreement and that deal is ratified by the courts via a binding consent decree.<\/p>\n

The practice is common at every level of government. New York City, for example, is obligated to house and feed tens of thousands of migrants because of a consent decree it entered into to settle a 1979 lawsuit brought by advocates for the homeless. But it is most prevalent in the environmental field, where well-funded groups commonly sue the Environmental Protection Agency or the Bureau of Land Management within the Department of the Interior alleging failure to enforce provisions of the Clean Air Act or regulations regarding federal leases for energy production.<\/p>\n

Although such consent decrees do not have the force of laws passed by Congress or regulations issued by the government that have gone through formal review and allow for public comment, they set the rules of the road. Critics say it has allowed government to advance policy goals that cannot be achieved through normal democratic channels.\u00a0<\/strong><\/p>\n

\u201cIt\u2019s not really an adversarial lawsuit, and with a settlement agreement and consent decree the case is never really over,\u201d said Dave Tryon, director of litigation at the free-market\u00a0Buckeye Institute<\/a>. \u201cThe EPA is anxious to increase its power and control; it\u2019s always happy to expand that.\u201d<\/p>\n

The legal maneuver represents, according to this view, a return to the proverbial smoked-filled backrooms of politics. <\/strong>Huddled privately, without input from citizens or businesses that may be adversely affected by the decisions \u2013 let alone the public at large \u2013 lawsuits that often involve parties more simpatico than adversarial are settled. The plaintiffs and defendants are familiar to one another from years in the environmental lobbying and litigation world \u2013 and because of the \u201crevolving door\u201d between environmental groups and Democratic administrations. These like-minded players approach the issue seeking similar goals, a process that has only intensified with the Biden administration and leftist environmental groups sharing the belief that global warming is an existential threat.<\/p>\n

\u201cOverall, it\u2019s harkening back to the bad old days \u2013 they do this in order to avoid scrutiny and bypass the regulatory process,\u201d said Thomas Pyle, president of the American Energy Alliance<\/a>, an advocacy arm of the Institute for Energy Research. \u201cIt\u2019s a way to advance an agenda that may be rejected by voters. It\u2019s a nefarious practice in which the agency and the environmental groups get what they want.\u201d<\/p>\n

Sue-and-settle is part of an even broader effort known as \u201clawfare,\u201d in which political parties and advocacy groups seek to achieve their goals not through elections or legislation but in the courts. This encompasses everything from President Trump\u2019s \u201cstop the steal\u201d efforts to overturn the 2020 election through the courts to myriad efforts by Democrats, whose lawfare campaigns have ranged from getting courts to confiscate Trump\u2019s businesses and charge him criminally to removing him from the 2024 ballot.<\/p>\n

Settlements are common in the courts. <\/strong>They are often welcomed as a way to avoid costly, protracted litigation while also clearing dockets. But sue-and-settle is different, said Paul Seby, an attorney with GreenbergTraurig in Denver, who often represents the state of North Dakota in energy matters.<\/p>\n

\u201cThose deals where someone is asked to enforce mandatory actions \u2013 that\u2019s all legit and there\u2019s no real beef with that,\u201d Seby said. \u201cThe problem is when there is footsie going on between an agency of the Department of Justice and the non-governmental organization. That\u2019s where they make a deal in a consent decree that says a department must do something more than just comply with some deadline they missed.\u201d<\/p>\n

The Western states\u2019 suit, filed in the D.C. federal circuit, is a good example, according to critics. The lawsuit was first filed against the Bureau of Land Management in 2016<\/strong>, alleging insufficient attention had been paid to global warming when approving leases in Wyoming, Utah, and Colorado. So the BLM and the states agreed to re-do studies under the National Environmental Policy Act (NEPA), and, after concluding that the leases complied with the law, the Trump administration-led agency approved the leases again. Environmental groups filed another lawsuit in 2021 and Biden\u2019s BLM settled the case, in effect giving the groups what they wanted.<\/p>\n

\u201cYou can always do more \u2018analysis\u2019 as the environmental groups demand, and the usual remedy is to re-do the analysis,\u201d said Kathleen Sgamma, president of the Western Energy Alliance<\/a>, another industry consortium that sought to intervene in the case. \u201cBut instead of the small things, BLM will agree to reopen the whole resource management. In other words, BLM just agrees to do what the plaintiffs wanted.\u201d<\/p>\n

The Trump administration had moved to stop the practice. In 2017, then-EPA administrator Scott Pruitt issued a memo<\/a> prohibiting the agency from entering into consent decrees with non-governmental actors and also began publicizing any such suit when it was filed. \u201cThe era of regulation through litigation is over,\u201d Pruitt declared.<\/p>\n

Those policies were rescinded by Biden\u2019s EPA chief Michael Regan, who spent eight years as a vice president with an advocacy group involved in many such suits, the Environmental Defense Fund<\/a>.<\/strong><\/p>\n

One sign of how the practice has taken off under the Biden administration is the explosion in plaintiffs\u2019 legal fees as part of settlements \u2013 meaning taxpayers foot the bill for environmental lawsuits.<\/p>\n

In the two years since the Biden administration lifted most of the Pruitt memo restrictions, those fees have jumped to almost $7 million, according to a January report from the fiscal watchdog group OpenTheBooks<\/a>. That is nearly double the total of Trump\u2019s four years of $3.6 million. It is also more than the $5.8 million in attorney fee payouts for suits brought under the Clean Air Act, the Clean Water Act, and the Endangered Species Act during Obama\u2019s second term, OpenTheBooks found.<\/p>\n

The EPA disputed the characterization that it has radically changed course under Biden. While it acknowledged Regan\u2019s \u201clitigation transparency memorandum revoked and replaced\u201d Pruitt\u2019s October 2017 memo, an EPA spokesperson insisted the agency \u201chas not discontinued or rolled back and practices under Administrator Pruitt\u2019s 2017 directive that the prior Administration had been maintaining.\u201d<\/p>\n

\u201cEPA has taken steps to enhance public awareness of environmental claims against the Agency and to provide an opportunity for public review and comment on proposed settlement of those claims,<\/strong>\u201d an agency spokesperson said.<\/p>\n

But the EPA did not respond to RCI\u2019s interview requests and did not answer questions about how many settlement agreements it may have reached overall with specific plaintiffs. So the exact number of consent decrees signed with them remains uncertain.<\/p>\n

The EPA does have a place at its website that lists more than 500 lawsuits<\/a> against it going back to the Obama administration. That shows that the significantly higher attorneys\u2019 costs under Biden have happened with fewer settlements overall than in Obama\u2019s second term or Trump\u2019s term. A EPA collection of links to consent decrees<\/a> is not formatted by date, and both congressional committees and attorneys for energy companies believe it is incomplete.<\/p>\n

\u201cThere\u2019s lawsuits sometimes we don\u2019t know about and there are just so many cases where you would want or need to intervene,\u201d said Sgamma of the Western Energy Alliance.<\/p>\n

That intervention can sometimes succeed but it is expensive. In the Gulf of Mexico exploration settlement,\u00a0a lawsuit filed<\/a>\u00a0by the American Petroleum Institute, the state of Louisiana and Chevron managed to overturn the agreement reached between federal agencies and the environmental NGOs. That victory was upheld by the 5th Circuit Court of Appeals and the lease sales went through in December – three months after the date initially mandated for them by Congress.”<\/p>\n

Most of the environmental groups RCI contacted did not respond to questions or an interview request \u2013 including the Sierra Club, the Center for Biological Diversity<\/a>, and the Environmental Defense Fund. But the National Resources Defense Council<\/a> defended its courtroom efforts.<\/p>\n

\u201cThese steps and safeguards serve the public interest<\/strong>,\u201d said John Walke, a senior attorney with the NRDC. \u201cThey provide the public direct opportunity to influence the scope of federal rules and safeguards. They ensure that agencies administer our laws in ways that achieve what Congress intended.\u201d<\/p>\n

Walke also noted the framework of suits and settlements is not new.<\/p>\n

\u201cThe practice did not stop under the Trump administration, nor did it resume under the Biden administration,\u201d he said. \u201cIt is a long-standing, common and unremarkable feature of the federal courts themselves, not unique to federal agencies at all.\u201d<\/p>\n

There is an historical irony in that the germ of sue-and-settle tactics came under Richard Nixon when advocacy groups were warning of \u201cagency capture,\u201d meaning the companies that various federal agencies regulate had allegedly come to control the bureaucrats charged with crafting policy. Thus, individual groups were given standing to file lawsuits against the federal government with the idea of empowering those groups that presumably lacked the political and lobbying muscle of big business.<\/p>\n

On the environmental front, the policy became widespread during President Obama\u2019s second term, when the EPA was run by Gina McCarthy, who later served as president and CEO of the National Resources Defense Council.<\/p>\n

As McCarthy\u2019s move from the EPA to the NRDC indicates, the players reaching the deal are generally familiar to each other. The NRDC and the Center for Biological Diversity, two litigious groups, currently have executives that previously served at the EPA or in the Obama White House in an environmental job.<\/p>\n

It\u2019s a tight network of federal appointees and executives of environmental advocacy groups. In addition to Regan, Lisa Garcia, the administrator for the EPA\u2019s Region 2 covering New York, New Jersey and other territory, was with EarthJustice after serving under McCarthy. Matthew Tejada, a senior vice president, and Christy Goldfuss, an executive director, both held positions in the Obama administration, as did Maggie Coulter, a senior attorney at the Center for Biological Diversity.<\/p>\n

This cross-pollination between environmental regulatory agencies and the litigious groups also extends to the myriad \u201cenvironmental law clinics\u201d at law schools across the country.<\/strong><\/p>\n

\u201cUsually, the federal government vigorously defends itself against lawsuits challenging its actions. But not always,\u201d attorney Andrew Grossman, a partner with Baker Hostetler, testified to the House Subcommittee on the Constitution and Limited Government. \u201cSometimes regulators are only too happy to face collusive lawsuits by friendly \u2018foes\u2019 aimed at compelling government action that would otherwise be difficult or impossible to achieve.\u201d<\/p>\n

Whether blindsided by regulations the market never saw coming, or handcuffed by the blanket of inactivity a consent decree may throw over an area, the practice of sue-and-settle is a pernicious one, according to its critics.<\/p>\n

\u201cThe whole thing is bypassing democracy because the litigation delegates power to outside groups,\u201d said Walter Olson, a conservative legal scholar at the Cato Institute. \u201cBecause the consent decrees can set the future course of how agencies do business, it means that behind closed doors they are tying the hands of future voters and administrators. That\u2019s not at all how it\u2019s supposed to be.\u201d<\/p>\n

In addition, the very nature of the deals, struck between two sides firmly committed to the idea the economy should be pushed toward net zero emissions, reflects what is happening, according to critics.<\/strong> Given that plaintiffs and defendants share the same outlook on global warming and would like to put vast areas off-limits to oil and gas exploration, it is no surprise that is exactly what the settlements accomplish, said Sgamma.<\/p>\n

Some believe legislation could reign in global warming lawfare, while empowering voters and taxpayers. House Republicans held at least two hearings on the tactic in 2023, the most recent last December \u2013 though critics note that the issue has been a political football at least since the Reagan administration.<\/p>\n

In November, the House Committee on Oversight and Accountability announced it would investigate<\/a> the EPA\u2019s \u201cuse of secretive \u2018sue-and-settle\u2019 practices,\u201d and how the Biden administration is \u201cusing sue-and-settle tactics to avoid congressional oversight and implement more burdensome regulations at the bidding of special interests.\u201d<\/p>\n

At the end of the year, a handful of Republican lawmakers introduced the \u201cNo Regulation Through Litigation\u201d act<\/a> that would \u201ccodify that a federal agency cannot enter into a settlement agreement or consent decree that exceeds the authority of the court,\u201d while also prohibiting the payment of attorneys\u2019 fees in cases that result in such deals.<\/p>\n

Despite congressional debate in the House, lawmakers proved reticent about discussing possible solutions to sue-and-settle. RCI reached out to all the Republicans and some Democrats on the committees who heard testimony about the matter last year, and Virginia Rep. Bob Good was the only representative to respond.<\/p>\n

\u201cThe Obama administration often bypassed Congress, using sue and settle tactics to accomplish what they could not via the legislative process,\u201d Good said. \u201cBiden is continuing that unconstitutional legacy and weaponizing the government against the people.<\/strong>\u201d<\/p>\n

Similarly, the members of both the American Energy Alliance and the Western Energy Alliance are skittish about angering regulatory agencies and thus declined to discuss the matter.<\/p>\n

\u201cThe way to solve this is by bringing more people and transparency into the process,\u201d the Buckeye Institute\u2019s Tryon said. \u201cNow, it\u2019s impossible to follow all the lawsuits, and we don\u2019t even know all the things that are happening. With more openness it could be monitored more closely because now people who are afflicted by<\/p>\n<\/div>\n

Tyler Durden<\/a><\/span>
\nWed, 02\/21\/2024 – 22:20<\/span><\/p>\n

\u200bRead More<\/a>\u00a0<\/p>\n

\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

‘Sue And Settle’ Looks To Some Like Crony Democracy… And Under Biden’s Lawfaring Eco-Politics, It’s Back Authored by James Varney via RealClear Wire, When the…<\/p>\n","protected":false},"author":0,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1458650","post","type-post","status-publish","format-standard","hentry","category-news","wpcat-1-id"],"_links":{"self":[{"href":"https:\/\/bugaluu.com\/news\/wp-json\/wp\/v2\/posts\/1458650","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bugaluu.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bugaluu.com\/news\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/bugaluu.com\/news\/wp-json\/wp\/v2\/comments?post=1458650"}],"version-history":[{"count":0,"href":"https:\/\/bugaluu.com\/news\/wp-json\/wp\/v2\/posts\/1458650\/revisions"}],"wp:attachment":[{"href":"https:\/\/bugaluu.com\/news\/wp-json\/wp\/v2\/media?parent=1458650"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bugaluu.com\/news\/wp-json\/wp\/v2\/categories?post=1458650"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bugaluu.com\/news\/wp-json\/wp\/v2\/tags?post=1458650"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}