Biden admin employs ‘Sue and Settle’ tactic for unpopular climate policies
When the Biden administration made the groundbreaking announcement in 2022 that it would protect 4 million acres of federal land in Western states from oil and gas exploration, environmental groups celebrated the decision as a major victory in the battle against climate change.
Jeremy Nichols, a director with WildEarth Guardians, stated, “With the oil and gas industry determined to harm America’s public lands and contribute to the climate crisis, this is a crucial opportunity for the Biden administration to lead the way towards clean energy and independence from fossil fuels.”
However, what many people don’t realize is that this move by the administration was actually the result of a private settlement of a lawsuit filed by WildEarth and others. Energy consortiums had tried to intervene in the matter, but their objections were dismissed.
A similar situation occurred last August when the Biden administration settled a lawsuit brought by environmental groups, including the Sierra Club, resulting in the exclusion of 6 million acres of the energy-rich Gulf of Mexico seabed from exploration. This settlement caused operational delays for the industry and expensive litigation to overturn it.
Critics of the administration argue that these actions reflect the return of a practice known as “sue and settle,” which was embraced during the Obama administration and rejected under Donald Trump’s presidency. This tactic involves advocacy groups suing federal agencies for failing to enforce laws or regulations, and then reaching private agreements that are ratified by the courts.
While this practice is common in various levels of government, it is particularly prevalent in the environmental field. Well-funded groups often sue the Environmental Protection Agency (EPA) or the Bureau of Land Management (BLM) within the Department of the Interior, alleging failure to enforce environmental regulations.
Although consent decrees resulting from these lawsuits do not have the same authority as laws or formal regulations, they effectively set the rules. Critics argue that this allows the government to advance policy goals without going through the normal democratic process.
Dave Tryon, director of litigation at the free-market Buckeye Institute, explained, “The EPA is eager to increase its power and control; it’s always happy to expand that.”
This practice has been dubbed “sue and settle” and is part of a broader strategy known as “lawfare,” where political parties and advocacy groups seek to achieve their goals through the courts rather than through legislation or elections.
While settlements are common in the legal system, sue-and-settle is different. Paul Seby, an attorney with Greenberg Traurig, emphasized, “The problem is when there is collusion between a federal agency and a non-governmental organization. They make a deal in a consent decree that goes beyond simply complying with missed deadlines.”
Critics argue that sue-and-settle represents a return to the backroom politics of the past. Lawsuits are settled privately, without input from the public or businesses that may be affected by the decisions. The plaintiffs and defendants often have close relationships from years of lobbying and litigation in the environmental field.
Thomas Pyle, president of the American Energy Alliance, stated, “Overall, it’s harkening back to the bad old days — they do this to avoid scrutiny and bypass the regulatory process. It’s a way to advance an agenda that may be rejected by voters. It’s a nefarious practice in which the agency and the environmental groups get what they want.”
Sue-and-settle is just one aspect of the larger issue of lawfare, which has been used by both political parties and advocacy groups to achieve their goals through the courts. Critics argue that this undermines democracy and bypasses the legislative process.
Efforts have been made to address this issue through legislation, such as the No Regulation Through Litigation Act, which aims to limit the authority of federal agencies to enter into settlement agreements that exceed the court’s authority. However, finding a solution to sue-and-settle remains a challenge.
Walter Olson, a legal scholar at the Cato Institute, summed it up by saying, “The whole thing is bypassing democracy because the litigation delegates power to outside groups. They are tying the hands of future voters and administrators behind closed doors. That’s not how it’s supposed to be.”
Despite ongoing debates and investigations, the practice of sue-and-settle continues to shape environmental policy under the Biden administration, with critics arguing that it undermines transparency and public input.
This article was originally published by RealClearInvestigations.
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What steps can be taken to ensure greater accountability and validity of lawsuits filed through the sue-and-settle process
S behind closed doors, without public input, without going through the appropriate regulatory process, and without the transparency that is necessary in a democratic society.”
Proponents of sue-and-settle argue that it is a necessary tool for holding government agencies accountable and enforcing environmental protection laws. They argue that when federal agencies fail to enforce regulations, it is the duty of advocacy groups to step in and ensure that the laws are upheld.
However, critics contend that this practice undermines the democratic process and allows unelected bureaucrats to make significant policy decisions without proper oversight. They argue that it grants an excessive amount of power to advocacy groups and allows them to bypass the legislative and regulatory processes that have been put in place to ensure transparency and public input.
Furthermore, opponents of sue-and-settle argue that it results in a lack of predictability for businesses and industries. When settlements are reached behind closed doors, without any input from the affected parties, it creates uncertainty and makes it difficult for businesses to plan for the future. This can lead to operational delays and expensive litigation to challenge or overturn these settlements.
The use of sue-and-settle has seen a resurgence under the Biden administration, with environmental groups filing lawsuits and reaching settlements that have significant implications for energy production and land use. While proponents argue that these settlements are necessary for protecting the environment and combating climate change, critics warn that it is eroding the democratic process and undermining the rule of law.
To address these concerns, there is a need for greater transparency and public input in the settlement process. Advocacy groups should be held accountable for their actions and required to demonstrate that their lawsuits are based on valid concerns and not frivolous claims. Additionally, federal agencies should be more proactive in enforcing regulations and addressing environmental concerns, reducing the need for advocacy groups to resort to legal action.
In conclusion, while sue-and-settle may serve as a tool for holding government agencies accountable, it also raises concerns about the erosion of the democratic process and the lack of transparency and public input. It is crucial to strike a balance between enforcing environmental protection laws and ensuring that the appropriate regulatory processes are followed. The Biden administration should strive to address these concerns and find a more democratic and transparent approach to environmental policy-making.
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