Congress Must Rein In Expensive ‘Sue and Settle’ Tactics by EPA | Commentary

Posted May 7, 2013 at 4:00am

The Environmental Protection Agency is always looking for ways to expand its power and scope. That’s not exactly news in Washington and not dissimilar to most federal bureaucracies. But unlike many other agencies, the EPA has figured out a way to completely eschew government transparency and circumvent the traditional regulatory process in a way that needlessly spends more taxpayer dollars.

This unconventional tactic, known as “sue and settle,” works when the EPA and a like-minded group, such as the Environmental Working Group, coordinate a lawsuit between each other where there is no aggrieved party. The court then quickly adopts a pre-arranged settlement. In addition to undermining the adversarial litigation process, that settlement paves the way for new regulations that are favored by the environmental groups and the EPA — such as tougher emission standards for fossil fuels.

The deadline to execute the settlement is intentionally short term, which leaves those affected by the new regulation with little opportunity to react. The EPA then implements the new regulation on a rapid timetable and, if questioned, the agency defends its actions as “court-ordered.”

To add insult to injury, taxpayers are required to pay attorneys’ fees for both the government and the environmental group suing the government which turns out to be a “no win” situation for taxpayers or common-sense regulations.

The U.S. Chamber of Commerce and Competitive Enterprise Institute scholar William Yeatman recently shed some light on how the EPA uses the sue and settle regime to advance its political and policy goals. The process and results should alarm every member of Congress.

In 1977, Congress created the Regional Haze amendment to the Clean Water Act to improve visibility and air quality at our federal national parks and wilderness areas. At that time, Congress decided that the Regional Haze program was only for aesthetic value and that states had the right to decide what levels of haze are desirable and how to achieve those levels. The amendment requires that each state create and submit a Regional Haze program proposal to the EPA, and the agency has the authority only to approve or deny the proposal.

In other words, the Regional Haze amendment doesn’t give much power to the EPA to regulate an industry it now wants to kill — coal — in favor of other “cleaner” power sources, like solar and natural gas.

Enter sue and settle.

In July 2011, New Mexico submitted their Regional Haze plan to the EPA, one that went well beyond the EPA’s emission target recommendation for the state. The EPA refused to even consider the plan. The agency was under a strict September 2011 deadline it had just negotiated with WildEarth Guardians after the environmental group sued the EPA for failing to do its “technical and procedural” duties in the state. The EPA had no choice but to implement its own plan, which increased the burden of reducing haze on coal plants.

The EPA has worked this litigation magic, or threatened to do so, in several other states and with several more staged to occur. And each Regional Haze plan that the EPA dictates to those states furthers their not-so-ulterior agenda of killing the coal industry.

But that is not good for the nation or our struggling economy. Coal-powered electrical plants are critical for many regions of the country that rely on the readily available and cheap fuel sources to power their homes and offices. But when the EPA engages in this sue and settle charade, it takes unilateral steps that fail to give the industry a fair amount of time to help shape regulations, which affect their ability to operate, sustain jobs and keep energy costs low for American families.

The good news is that there are bills in both the House and Senate, sponsored by Rep. Doug Collins, R-Ga., and Sen. Charles E. Grassley, R-Iowa, to eliminate “sue and settle.” Unfortunately, both pieces of legislation don’t currently have any Democratic co-sponsors.

Democrats must set aside partisan politics and support this critical legislation. Even if the Left agrees with the tougher environmental regulations created by sue and settle, they should oppose the EPA operating outside standard rule-making process and circumventing Congress’ constitutional authority to write our nation’s laws because there may come a day when they are on the other side and need the added scrutiny of a regulation.

With our nation facing record-high deficits, precious taxpayer dollars should not be wasted on this dubious practice to advance the EPA’s radical agenda.

David Williams is the president of the Taxpayers Protection Alliance, a budget watchdog committed to smaller government and fairness for American taxpayers.