Sue and Settle: How the EPA Removes Power from States and Hands It to Environmental Groups
In a report released Tuesday, the American Legislative Exchange Coucil (ALEC) sounded the alarm on the unchecked power grab by the federal government via the Environmental Protection Agency (EPA) since the beginning of President Obama's first term in 2009.
The report reviews the EPA’s unprecedented regulatory expansion that severely curtails state sovereignty by replacing input from the states with environmental groups. This transfer of power seems like something out of Atlas Shrugged, and is accomplished by a method known as Sue and Settle. The effect of Sue and Settle is to limit input from local elected officials and allow radical environmentalists to set policy at the expense of local residents, local budgets and local control.
The report lays out how Obama's EPA has disapproved state environmental strategies and regulations to comply with the Clean Air Act and the Clean Water act - and at a far higher rate than the past several presidential terms. In many cases, the EPA has wielded its authority to take over a state's entire plan and implement a Federal Implementation Plan, or FIP: "From 1997–2009, there were only two total FIPs imposed by the EPA. Since 2009, there have been 19."
But the EPA, despite its massive expansion, is still the same inefficient federal bureaucracy it's always been. So instead of maintaining the control it's just wrested from a state, it brings in outside groups to write the regulations:
Forty percent of the EPA’s regulatory takeovers, in addition to the aforementioned FIPs proposed for 33 states last February, were derivative of “sue and settle,” a legal strategy by which the agency effectively replaces state participation with that of environmentalist groups like the Sierra Club. Since 2009, the EPA has imposed at least $13 billion in annual regulatory costs that resulted from sue-and-settle litigation. Sue and settle is made possible primarily by the fact that the EPA has more mandates than it can handle. The agency is, for example, still implementing the 1997 National Ambient Air Quality Standard for ozone, much more than a decade after it was legally required to do so. Because the EPA’s responsibilities far exceed its resources, establishing regulatory priorities is essential, and it is a decision that should be made with the states. With sue and settle, the EPA has found a way to cut states out of the process, instead negotiating the agency’s priorities with environmental special interests.
Here’s how it works: An environmentalist litigation outfit like the Sierra Club sues the EPA for failing to meet a deadline for regulatory action pursuant to the Clean Air Act or Clean Water Act. Instead of challenging the suit, both the EPA and the environmentalist groups immediately engage in friendly negotiations, which lead to a settlement that determines a deadline. By dictating how the EPA should use its limited resources, these sweetheart settlements effectively render official policy.
As you may have already guessed, these types of settlements have skyrocketed in the Obama EPA. And far be it from the EPA to, you know, inform the states of the pending litigation. Talk about getting caught flat footed - states often end up having to play catch-up on regulations they didn't even know were pending. And when the states do become aware of pending litigation and try to have a voice in the process, the EPA has often been hostile to their involvement:
When North Dakota Attorney General Wayne Stenehjem learned that his state was subject to FIP pursuant to an EPA settlement with WildEarth Guardians in an Oakland federal court, he tried to gain intervention into the lawsuit, so that North Dakota could have a voice. The EPA opposed Stenehjem’s motion to intervene, and won a court order that kept North Dakota out of negotiations. The EPA has, unfortunately, made a practice of opposing participation by states—the regulated entities—in settlement discussions with environmentalist organizations. Officials from Virginia and Maryland have also tried to intervene in sue-and-settle negotiations that affected their states, only to be opposed in court by the EPA.
The result is that since 2009, states have been saddled with at least $13 Billion in annual regulatory costs from Sue and Settle litigation. That's $13 Billion out of state budgets over which the states have little to no say.
This is the kind of upside down world we live in under Obama's EPA, and it only promises to get worse in his second term.
freedomworks.org 
Worse, the EPA pays Green groups to sue it to "force" it to do things:
EPA Funds Green Groups That Sue The Agency To Expand
By JOHN MERLINE, INVESTOR'S BUSINESS DAILY
Posted 07/06/2011 06:17 PM ET
New EPA rules will force Western coal-fired power plants to install haze-reducing pollution-control equipment at a cost of $1.5 billion a year.... View Enlarged Image
When the Environmental Protection Agency said in late June that it would force Western coal-fired power plants to install haze-reducing pollution-control equipment at a cost of $1.5 billion a year, it said it had to in order to settle a lawsuit by environmental groups.
One organization involved in the suit, the Environmental Defense Fund, has a long history of taking the EPA to court. In fact, a cursory review finds almost half a dozen cases in the past 10 years.
The odd thing is that the EPA, in turn, has handed EDF $2.76 million in grants over that same period, according to an IBD review of the agency's grant database.
[ EPA to environmental extremists: Here's a grant to sue us to "make" us do stuff elected officials wouldn't like. ]
This strange relationship goes well beyond EDF. Indeed, several environmental groups that have received millions in EPA grants regularly file suit against that same agency. A dozen green groups were responsible for more than 3,000 suits against the EPA and other government agencies over the past decade, according to a study by the Wyoming-based Budd-Falen Law Offices.
The EPA even tacitly encourages such suits, going so far as to pay for and promote a "Citizen's Guide" that, among other things, explains how to sue the agency under "citizen suit" provisions in environmental laws. The guide's author — the Environmental Law Institute — has received $9.9 million in EPA grants over the past decade.
And, to top it off, critics say the EPA often ends up paying the groups' legal fees under the Equal Access to Justice Act.
'Sweetheart Suits'
What's going on?
"The EPA isn't harmed by these suits," said Jeffrey Holmstead, who was an EPA official during the Bush administration. "Often the suits involve things the EPA wants to do anyway. By inviting a lawsuit and then signing a consent decree, the agency gets legal cover from political heat."
Holmstead called this kind of litigation "sweetheart suits."
He cites the EPA settlement of a greenhouse gas emissions suit as a good example.
The suit, filed in 2008 by EDF, the Natural Resources Defense Council (which has received $6.5 million in EPA grants since 2000), the Sierra Club and several states, sought to compel the EPA to issue greenhouse gas "performance standards" for power plants and refineries. In its settlement, the EPA agreed to do that.
"This is hard to describe as anything other than a victory for the states and the environmental plaintiffs," wrote Nathan Richardson of the nonpartisan think tank Resources for the Future in a paper. "By committing to performance standards in the settlement agreement, the agency is tying its own hands."
That sparked an outraged letter from House Energy and Commerce Committee Chairman Rep. Fred Upton, R-Mich., and Sen. James Inhofe, R-Okla., ranking member of the relevant Senate panel, who said the costly settlement was "concocted in secret" and that it was "entirely discretionary, no court ordered them."
The EPA and EDF did not respond to requests for comment.
Rep. Ed Whitfield, R-Ky., who heads the Energy and Commerce Committee's energy and power panel, warns that environmental policy is increasingly being "being determined by privately settled lawsuits and monetary payoffs with absolutely no input from elected representatives."
Other examples of EPA grantees suing the agency:
In 2005, several states and environmental groups — including EDF and NRDC, along with Physicians for Social Responsibility ($135,000 in an EPA grant) — sued the EPA claiming its mercury rule didn't go far enough. In 2008, the courts agreed. Now the EPA, under a court-supervised deadline negotiated by the EPA, the EDF and others, has until mid-November to complete rules cutting emissions of mercury and other toxins that the agency says will cost $11 billion a year.
• In 2006, EDF, the NRDC and others — including several states — sued the agency for its decision not to regulate carbon dioxide.
• In January 2009, the Chesapeake Bay Foundation filed suit claiming the EPA wasn't doing enough to clean the bay. That July, the EPA gave the foundation a $1.3 million grant to retrofit a dozen boats as part of the stimulus bill.
• Last year, the Pesticide Action Network ($238,000 in EPA grants) and the NRDC sued to force the agency to ban the pesticide chlorpyrifos.
• This May, the NRDC, Physicians for Social Responsibility and others announced plans to sue the EPA for failing to enforce smog standards in California.
Defenders of all this litigation say there's no connection between the grant money — which is for specific projects or programs — and the suits, and point out that these groups are simply trying to get the EPA to do what the law requires them to do.
But those suits could be less frequent if Sen. John Barrasso, R-Wyo., has his way. His bill would deny environmental groups whose net worth exceeds $7 million from getting their legal fees paid for by the Equal Access to Justice Act. He'd also cap attorney fees at $175 an hour.
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