The Sue and Settle Scam

PennEast - Jim Willis reports

Jim Willis
Editor & Publisher, Marcellus Drilling News (MDN)


There is a sue and settle scam being perpetrated on America by environmental special interests. It is replacing our rule of law with rule by oligarchy.

There is an on-going scam called “sue and settle” that is routinely being used by our federal government – financed by us, by taxpayers – that will make your blood boil. It’s not new. It’s been going on for years and is now refined into an art form. MDN first heard about this practice at the Oil & Gas Awards in Oklahoma City last fall when Oklahoma’s excellent Attorney General Scott Pruitt gave the assembled crowd a rundown of how the Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife Service (USFWS) is attempting to stick it to the oil and gas industry by using this tactic.

Here’s how it works: a far-left radical environmental special interest group such as Earthjustice sues a government agency, such as EPA or USFWS, to force the agency to enact a new rule or regulation; supposedly for the purpose of complying with an existing law but actually extending the law. The government agency actually seeks the lawsuit (colluding with the extremist group to invite it), so they can get a court order “forcing” them to take a certain action.

Earthjustice and the government agency, behind closed doors, work out what the action will be. At the conclusion of the lawsuit, the court awards the “winning” party compensation from the “losing” party to cover legal fees. Using that strategy, from 1995 to 2010, Earthjustice received $4,655,425 of taxpayer money. Question: Why hasn’t Earthjustice been exposed as frauds and shut down?

Sue and Settle

The Big Green Hand of Injustice and Rule by Oligarchy

Below is perhaps the best explanation we’ve seen of “sue and settle” – an issue you need to be aware of. It comes from a January 2014 Forbes magazine article about how an out-of-control EPA is using this tactic to target homeowners with wood stoves.

This is but another example of EPA and other government agencies working with activist environmental groups to sue and settle on claims that afford leverage to enact new regulations which they lack statutory authority to otherwise accomplish.

“Sue and settle “ practices, sometimes referred to as “friendly lawsuits,” are cozy deals through which far-left radical environmental groups file lawsuits against federal agencies wherein court-ordered “consent decrees” are issued based upon a prearranged settlement agreement they collaboratively craft together in advance behind closed doors. Then, rather than allowing the entire process to play out, the agency being sued settles the lawsuit by agreeing to move forward with the requested action both they and the litigants want.

And who pays for this litigation? All-too-often we taxpayers are put on the hook for legal fees of both colluding parties. According to a 2011 GAO report, this amounted to millions of dollars awarded to environmental organizations for EPA litigations between 1995 and 2010. Three “Big Green” groups received 41% of this payback, with Earthjustice accounting for 30 percent ($4,655,425). Two other organizations with histories of lobbying for regulations EPA wants while also receiving agency funding are the American Lung Association (ALA) and the Sierra Club.

In addition, the Department of Justice forked over at least $43 million of our money defending EPA in court between 1998 and 2010. This didn’t include money spent by EPA for their legal costs in connection with those rip-offs because EPA doesn’t keep track of their attorney’s time on a case-by-case basis.

The U.S. Chamber of Commerce has concluded that Sue and Settle rulemaking is responsible for many of EPA’s “most controversial, economically significant regulations that have plagued the business community for the past few years”. Included are regulations on power plants, refineries, mining operations, cement plants, chemical manufacturers, and a host of other industries. Such consent decree-based rulemaking enables EPA to argue to Congress: “The court made us do it.”*

Thankfully, there are brave souls in our federal and state governments working to stop this madness:

Directing special attention to these congressional end run practices, Louisiana Senator David Vitter, top Republican on the Senate Environment and Public Works Committee, has launched an investigation. Last year he asked his Louisiana Attorney General Buddy Caldwell to join with AGs of 13 other states who filed a Freedom of Information Act (FOIA) seeking all correspondence between EPA and a list of 80 environmental, labor union and public interest organizations that have been party to litigation since the start of the Obama administration.

Other concerned and impacted parties have little influence over such court procedures and decisions. While the environmental group is given a seat at the table, outsiders who are most impacted are excluded, with no opportunity to object to the settlements. No public notice about the settlement is released until the agreement is filed in court…after the damage has been done.

In a letter to Caldwell, Senator Vitter wrote: “The collusion between federal bureaucrats and the organizations entering consent agreements under a shroud of secrecy represents the antithesis of a transparent government, and your participation in the FOIA request will help Louisianans understand the process by which these settlements were reached.”

Unfortunately, more than a year later, this practice is still very much alive. The EPA is going after wood burning homes in Vermont.

Editor’s Note: The only thing missing from Jim’s piece is the role of the oligarch foundations funding these environmental special interests. EarthJustice, for example, receives funding from the Park Foundation, the Google folks and the Energy Foundation, all run by America’s current crop of snobs and this is how they exercise influence today to get radical rules and regulations they could never get through the legislatures. It is a steady erosion of the rule of law by oligarchs ruling through the courts and with the cooperation of environmental zealots within agency bureaucracies. 

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