Foreword by Paul Dreissen.
Author, advisor and former US Senate aide and Colorado Department of Natural Resources director Greg Walcher has written an important article on how sue-and-settle lawsuits ignored and abused our fundamental rights to legal due process from their very beginning – while enriching the environmentalist groups that brought the legal actions. He also explains why EPA Administrator Scott Pruitt was absolutely right to terminate the practice.
Walcher’s analysis should be read by every legislator, regulator, judge … and actual or potential victim of this infamous practice.
Time to get them off our gravy train
Sue and settle schemes reward pressure groups, and hurt the rest of America
by Greg Walcher
EPA Administrator Scott Pruitt recently issued a directive to end a 20-year string of “sue and settle” cases that have funneled untold millions of tax dollars to environmental organizations. Predictably, those groups and their allies have been apoplectic about it.
Many of these groups have grown from grassroots citizen movements to gigantic cash-flush conglomerates, with much of the cash coming from the government they appear or pretend to be fighting. Many now have separate legal arms with hundreds of attorneys, whose primary job is to sue the government and keep the cash flowing. They are part of the $13-billion-per-year U.S. environmental industry and lobby.
These organizations vehemently object to the phrase “sue and settle,” claiming it oversimplifies a very complex legal procedure. But in fact, the strategy isn’t really very complicated at all.
Congress has created a mess, with all sorts of processes and procedures agencies must follow in making rules and decisions. Every step of the way, those decisions are subject to potential lawsuits. For entirely different reasons, Congress also authorized the government to pay the legal bills of people who are forced to sue to defend their interests against government overreach.
It didn’t take long for clever organizations, and their allies in government, to figure out how to turn that combination into a massive public policy ATM that gives them our money to finance their ideologies, disinformation campaigns, and more activism.
Government officials sometimes get frustrated by that pesky process required to make decisions that they think should be quick and easy. That’s where “sue and settle” comes in.
A “friendly” organization files a lawsuit demanding the very action the officials want to take anyway. So the government agency reaches an out-of-court settlement – often in a carefully selected friendly court – in which the agency agrees to the action demanded by the lawsuit, and agrees to pay the organization’s legal fees as part of its penance.
The court agrees to the settlement, part of which often seals the details (such as legal fees), making it difficult for anyone to track these deals. The parties who are most directly affected by the decisions are left out of the process; they never get to testify, never get their day in court, because the case was settled without going to court.
About 20 years ago, government agencies stopped collecting data on these settlements, so that they were no longer “able to” (or had to) report to Congress on the amount of money involved, or the groups to whom our tax money was being paid. Long-time observers know it amounts to hundreds of millions of dollars over the years, and the recipients are mostly large environmental organizations.
Mr. Pruitt was right to direct an end to such abuses. Almost immediately, a group of 58 former EPA attorneys wrote a letter sharply criticizing his action, arguing that ending the practice will somehow harm the American people, as well as “fair and efficient operations” at EPA. Their letter is 13 pages long and has 23 footnotes, but you have to expect that from lawyers. For anyone who cares to wade through all the verbiage, their explanation is very telling.
The lawyers accuse Pruitt of “attempting to give regulated parties a special and powerful seat at the table with no corresponding role for other members of the public.” In other words, in their view, people who have no direct stake in the ruling should have the same seat at the same table as those directly affected.
They also claim the new directive does “a grave injustice by alleging, without evidence, collusion with outside groups.” They should know; these are some of the same folks who made sure that allegation would be “without evidence,” by hiding the attorney fees, other financial payments and other details of these settlements from Congress and the public.
Most telling of all, though, is this little gem from page eleven: “It is EPA’s failure to comply with legal requirements that is the problem, not the people who sue EPA….”
That is a remarkable contradiction from the letter’s signatories, who began by claiming the Pruitt directive would harm “fair and efficient operations” at EPA. That is, operations under rules that they devised to serve themselves and their allies, agendas and ideologies, especially during the Obama years.
Two more things you should know about the 58 former EPA employees who signed the letter. First, they are partisans who regularly criticize the current Administration. Most of the same people signed a similar letter on April 27, titled “Earth Warms While Trump Ignores Science,” as well as a February 15 letter to senators opposing Pruitt’s confirmation.
Second, and perhaps more important, they are environmental attorneys who object to ending the secretive gravy train that has paid the salaries of environmental attorneys for years. Could some of them now be working for organizations that sue the government, hoping to get their own “fair share” of these lucrative settlements? Might their paychecks actually depend on that very system?
“Sue and settle” is a gravy train never envisioned by Congress. It cannot withstand public scrutiny.
These attorneys ought to recall, and adhere to, the ethics of “Paper Chase” star John Housman, who once touted financial managers who “make money the old fashioned way – they earn it.”
__________
Greg Walcher (www.GregWalcher.com) is president of the Natural Resources Group and author of “Smoking Them Out: The Theft of the Environment and How to Take it Back,” now in its second printing. He is a former head of the Colorado Department of Natural Resources.
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This same modus operandi goes on in many states. It also goes on above and beyond the environmental arena. In my state it was going on with mental health in the 1980s. There is another problem seldom mentioned and has become more rampant with most Congressional budgets being done by Continuing Resolution (CR) and not by Regular Order as set forth in the Constitution. Many environmental groups get “grant and aid” directly out of the federal budget. No really competition except which groups lobbyists is the most skilled. Some of it is passed through federal agency, supposedly through their granting process. But no federal agency dare say no or their budget could be put on the block.
Trump has a lot of work to do cutting the fat out of government, but he’s just the guy to do it. 🙂
One question has to be “where are the judges in all this?”. They are often extremely familiar with all the scams that come before them, but because they are paid by the state they are not supposed to ever be directly benefiting from it financially, as the lawyers do. I understand that in the US some judges are elected as well as being political appointees, but surely most of them are still honest and would like to see the system working efficiently if that can be managed?
Thank you Mr. Walcher. Great summary of bad ethics and outright illegality.
Now all we need is a directive from the President to all agencies that they must defend against all lawsuits by corporations or non-profit entities about regulations. Or they can negotiate a settlement with no stays of regulations or penalties at the earliest convenience of the applicable court. If the agency loses in court after all appeals are exhausted it will refund any penalties and pay all court costs of the suitors at the ratio of their total overhead/annual budget or their earnings:sale ratio.
Maybe a lawyer can write better mumbo jumbo.
This only sounds good in theory. The main reason SOME agencies often settle is because the cost of fighting quickly runs in the hundreds of thousands to millions of dollars. Depending on the court, the odds of getting a reasonable judge may not be good (see 9th Circuit). In some cases, a judgement could end up applying to more than that specific case, so a new “rule” is in place for all national forests in the West, not just a particular national forest (random example). This becomes more of a danger as one goes up the appeal chain. It is not as simple as it should be.
There is a law that is supposed to help deter these frivolous lawsuits by forcing a group to pay the government’s costs if they lose, but many (most?) judges do not enforce it. I believe some of the large environmental groups sue through chapters to avoid being held responsible as well.
Some agencies are definitely corrupt or at the very least, shady. Others are doing the best they can with a crappy hand. There are certain “non-profits” who have a reputation (with at least one agency) as existing to sue the government (and force a settlement) and act as propagandists.
A lawyer from one of those non-profits once gave a talk for a class I took. He admitted that their main tactic was sue and settle, and touted it as some sort of wonderful thing. I spoke about this with someone who works for a government agency, and he confirmed that this group is one of the worst offenders for his agency and others.
Yet another reason I switched to calling myself a conservationist!
A simpler method is for Congress to do its job. Agency regulations should have a sunset clause say 12 months after which they cease to have force and cannot in any guise be reinstituted by the agency. Congress will be required to explicitly debate and pass a resolution for each regulation. This will stop the runaway generation of regulations and prevent lawyers and judges legislating in place of Congress.
This makes the Pentagon Papers look bland and average.
The other dirty secret about “sue and settle” is that many of these cases are filed with “cut-and-paste” language that is quite similar from case to case. However, when agreeing to pay legal fees to the plaintiffs, those fees are paid as though every bit of the document and its preparation were original work, and the hourly rates of the staff involved are highly inflated.
Most of the so-called legal fees end up in the coffers of the organization filing the suit, and is not paid to the attorneys, who are either on-staff, or working at very discounted rates.
These changes were long overdue. Unfortunately, when Trump is gone, which is likely to be in another 3 years, the EPA will go back to doing what it was doing while Congress looks the other way. In order for these changes to be made permanent, Congress must act. To begin with, they could amend the CAA to remove CO2 as a pollutant. It is insane that this rule was determined in court and not by Congress.
If Trump is gone in three years, there are two likely results: either Civil War 2, or Trump’s replacement by a President who really will drain the swamp.
There’s no going back to the Obama era, no matter how much the Republican establishment may want to.
Well, according to the impression given by the media and polls before the election, her royal pain and her consort are occupying the White House right now. (Another model gone wrong.)
Now they’re working overtime to give the impression that Trump won’t last out his term, let alone be reelected.
(And they’re pulling out every dirty trick in the book. They are desperate.)
It’s not just EPA. The Bureau of Land Management does the same, with so-called environmental groups colluding with BLM to “settle” cases before they go to trial. The goal is to stop all extractive uses of public lands and get whatever citizens might be using that land off of it. The Bundy’s and those Malheur refuge cowboys are right, unfortunately though not as articulate as the high-priced lawyers sent to to remove them.
“refuge cowboys are right”
What are they ‘right’ about again?
It is so rare to hear a protester articulate a substantive reason for the protest.
When President Eisenhower was leaving office, he warned the nation about what he perceived as the “military-industrial complex.” But as we see now, the real threat seems to be the “environmental lawyer-Government environmental bureaucrat complex”, both sides of which are enabled by a Congress that is full of lawyers.
This describes one of the bullets America dodged by electing Trump
RINO
I am just wondering, as a liberal Republican, who gets to decide who is a Republican?
One thing that my conservative Republican grandparents and my more liberal Republican parents could agree on was the environment. Snow in Ohio should not be grey. Rivers in Ohio should not catch fire.
Children should be able to swim in the rivers of Ohio and Lake Erie. That is what my father did but it was too polluted for me but not my children.
Anyone want to go back to the air and water quality of the 60s? How about the draft? Do you want to bring that back? Segregation?
Change that makes our country better for our children becomes a conservative idea. We are relabeled as ‘neocons’.
Bush made changes to coal fired power plant regulations by going to congress based on what modern technology.
Many here are against things like ‘mandates’ and ‘subsidies’ as tools to affect change based on the democratic process. While I think wind, solar, and BEV will not be around in 30 years; I am not against trying.
There is a huge difference between not as conservative as you might like Bush and King Obama decreeing regulations against the will of congress.