EXPOSED: Return of Sue-and-Settle: State AGs, DC Swamp Preparing Biggest End-Run in History — “Green New Deal” with No Legislation, No Rulemaking Process, Just a Sweetheart Consent Decree

Reposted from Government Accountability and Oversight


Activists who came up with plan now on Biden EPA transition team

As reported in the Wall Street Journal, a trail of emails between progressive state attorneys generals (AG) offices and former Obama-Biden and career Environmental Protection Agency (EPA) officials – obtained over nine months by Energy Policy Advocates’ dogged public record requests – reveal a plan to use the courts to impose the “climate” agenda early in the next administration, skipping Congress. The chosen approach is even more aggressive than the disastrous and politically unattainable “Green New Deal” (now rebranded as “Net Zero”) and was previously rejected by the Obama EPA and green activists as too extreme.

The plan is for an otherwise Obama-like move: an end-run around the democratic process, avoiding political sign-off or accountability for what would be a massive, painful and ideological restructuring of the U.S. economy.

Obfuscating by AG spokespeople notwithstanding, the hope appears to be to revive “sue-and-settle”, a practice by which green activists sue, e.g., the EPA to impose rules that the regulators wanted but couldn’t attain through regular means. “Instead of fighting the lawsuit, the EPA would then almost immediately surrender, agreeing to settle… consenting to whatever outrageous demands were being made by the agency’s handpicked ‘adversary.’” “When citizens or business complained, EPA would claim its hands were tied by the settlement.”

The progressive state AGs take the line in the Journal story that, when their political fortunes turned in Biden’s favor, they stood down on their plan to use the courts to impose a ‘climate NAAQS’ and otherwise the agenda through the courts — rather than turned to planing for a “sue and settle”.

Of course, they don’t dare file suit let alone acknowledge such a plan until a new EPA administrator is confirmed. Any other position than New York’s “we have no immediate plans to do so” would make for a very difficult process for, e.g., the rumored EPA pick, whose work they claim in emails to be following as a roadmap, Mary Nichols. As it still should.

There are other problems with this public straddle, not the least of which is that the AGs take the opposite position in court in refusing to release further records to Energy Policy Advocates: suit is pending, so we can’t release this! One wonders to whom the AGs are telling the truth, the courts, or the Wall Street Journal. Someone might ask.

Change of Plans, Transition Teams and Secrecy Pacts

After “cap-and-trade” legislation failed the Obama-Biden EPA sought to use the existing Clean Air Act to impose climate regulations, led by an individual named Joe Goffman. The Supreme Court, in West Virginia v. EPA, ended that effort, sending the climate industry back to the drawing board.

Now, after turning to Mr. Goffman for advice, AGs from California and Oregon to New York and Massachusetts developed an approach to impose what is called a National Ambient Air Quality Standard for climate, or NAAQS, under a Biden administration.

Conveniently, Goffman is now situated to finish preparations from his post on the Biden EPA transition team.

The plan requires massive central regulation of nearly all aspects of economic life – Obama’s “climate” agenda on steroids, a perpetual “Lockdown Economy”, requiring truly massive reductions in energy use emissions. Even Obama’s EPA Administrator Lisa Jackson rejected a climate NAAQS as not “advisable”. One prominent green attorney said “hell will freeze over” before that came to pass.

Goffman referred the AGs to other former EPA officials-turned-activists. Following their recommended plan, the AGs this past Spring entered agreements among themselves and Bill DeBlasio’s New York City, and with environmentalist pressure groups, declaring their work on the issue to be legally privileged to try and keep it secret from the public.

One of those groups with whom the AGs signed their secrecy pact is EarthJustice. EarthJustice’s Patrice Simms was named to lead the Biden EPA transition team.

Politically Toxic Lawsuit Held for “Sue-and-Settle”

These public records obtained from a half-dozen AG offices show the plan has been fully baked for months. It began to take shape in 2019 as a “Hail Mary” pass out of despair over a continued Trump presidency; despair soon turned into hope for an administration that would accommodate their demands by agreeing to a “consent decree” to implement the agenda.

It seems clear that the AGs withheld filing their suit with this in mind.

Former Vice President Joe Biden ran for the White House on a promise of imposing these same policies, and like his running mate, he calls climate change an “existential crisis”. A Biden-Harris administration would welcome this suit.

So would Nancy Pelosi and most congressional Democrats. The “climate” agenda is one of those bright-line distinctions that help clarify voters’ thinking. When counting votes for her return as Speaker of the House after the 2018 elections, Pelosi “was pressed on the need to shield centrist members from politically perilous votes… cit[ing] the cap-and-trade climate bill that House Democrats passed in 2009”.

Members who had been around longer than “AOC” recalled how that vote, which stirred great public opposition, played a significant role in the 2010 Republican House takeover.

Indeed, this time around only the Senate Republicans brought the “Green New Deal” up for a vote, exposing its own co-sponsors, including Sen. Kamala Harris, as afraid to go on record supporting it.

Filing this lawsuit in 2020 would not have been helpful to a certain party’s election prospects.

But under sue-and-settle, it would be so long, political and legal problems, hello long-sought, radical agenda as the Biden administration moves on to other things. Unless the public becomes sufficiently outraged over the abuse.

Absent that, politically, this is exceedingly clever, though it is a betrayal of our system of governance. Economically, it would be disastrous. If successful, the Biden administration would agree to impose a COVID-style economy, claiming as its authority the D.C. Circuit’s approval of the agreement struck between friends, and citing to an existing law that was never designed to allow such a thing which is what necessitated such a deal to begin with.

AGs Stonewall, Confess

Possibly this explains why, once public record requests by the group Energy Policy Advocates focused in on this scheme with outside activists, AG offices began forcing the group to go to court before releasing any further details. They needed to buy time.

In a September phone call in one of these lawsuits, a New Mexico assistant attorney general explained her Office’s remarkably obstinate stance on the matter by saying, “This is a very confidential issue”. While curious for being legally irrelevant, the claim is telling.

In open court in October, Washington State Assistant Attorney General Jennifer Steele, arguing to keep these records secret, informed the court that “the fact of the affirmative litigation is important here because it’s not — certainly not known to anyone.”

As late as November 12, 2020, these AGs claimed secrecy over the rest of the discussions they refuse to let the public see, on the grounds they were prepared “in anticipation of litigation”. So much for mystery.

Will They Get Away With It? Sue-and-Settle Tsunami?

This revolutionary act appears to be on its way, unless the public nip it in the bud with opposition of the kind shown to Obama’s rather less audacious “cap-and-trade” end run.

These revelations and the AGs’ fight to delay further releases also serve as a reminder that we could soon see a tsunami of sue-and-settle moves on major progressive priorities, on which there is more appetite for the agenda among the political class than for openly taking public credit — which is to say, accepting political accountability.

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November 30, 2020 6:16 pm

Demos… democracy is aborted by Democrats. Wicked.

Reply to  n.n
November 30, 2020 6:48 pm

Democrats believe that Democracy is too important to be left in the hands of the people.

Reply to  MarkW
December 1, 2020 7:07 am

If The People vote for those who promise the most free stuff (Big Government) , the people’s votes will become no longer needed. All democracies end like this.

But we have been living in an authoritarian system for much longer than you think. The unconstitutional Direct Taxation system tells you you are a slave. Just try not to pay them end find out how long your ‘liberty’ lasts.

Reply to  n.n
December 1, 2020 6:45 am
Joel Snider
Reply to  n.n
December 1, 2020 7:42 am

Fascism metastasizing.

Robert of Texas
November 30, 2020 6:32 pm

And if the high court blocks this then they will turn to packing the high court.

Joel O'Bryan
Reply to  Robert of Texas
November 30, 2020 6:57 pm

Not “if”. They know they must first pack the Supreme Court with the ACB confirmation as the 5th Sold conservative justice.

Reply to  Joel O'Bryan
December 1, 2020 7:35 am

Actually the court is 5-4 with Roberts being the 4th.

Joel Snider
Reply to  KyBill
December 1, 2020 11:14 am

Which is why I’m not confident the election will be turned back when it reaches the Supreme Court.

Reply to  Robert of Texas
December 1, 2020 5:21 am

The parties to any suit would be The Left Activists (TLA) and the The Swamp Agencies (TSA). Since TLA shops the Courts to find a favorable judge, it’s unlikely the Court would allow a third party to join the suit (interpleader, etc.). And that is likely not an appealable ruling.

The lawsuit’s two parties agree to “settle”, the judge allows it (even conservative judges) and neither party appeals. SCOTUS is never involved in the original suit.

When TSA (and DOJ) move to “enforce” the agreement, third parties will sue. Then, in a few years or so, SCOTUS may decide to hear the case(s) if they get that far. And remember, it will be the DOJ and TSA the third party will be fighting the full weight of the Gov plus the folks of Lawfare who have lots and lots of money. And, with a TLA Judge, and injunction (temporary pending appeal) will like be denied due to the twisted logic of “damage” to the environmnet, or of CO2, or of Covid mitigation or “Hey! It’s Friday and the Golf Links are calling”.

Reply to  cedarhill
December 1, 2020 1:40 pm

I think any such plan or even an EPA purposeful surrender would be appealed through one or several District Courts via the states that are not screwballs. It would perhaps not apply to most states that way, and probably would eventually make its way to the SCOTUS in a fashion similar to Obummer’s “Kill Coal” plan.

November 30, 2020 6:37 pm

So…. shhould one stock up on oil lamps, parts, wicks and lamp oil? Does this mean one can expect to lose electricity on the government’s whim? Go back to woodburning stoves for heat? Should I be stocking up on replicas of 18th century cookware, build a cabin with mud packed in the chinks, and learn to cook bread in a wood-fired outdoor oven, where my neighbors can leave their bean pots to cook on Sunday morning while they’re at church?

What is to come out of this apparent threat is unclear, but it’s nice to be prepared for disaster, isn’t it?

Can any of those self-important bozos cook, or is everything done for them?

Just trying to understand, that’s all.

Joel O'Bryan
Reply to  Sara
November 30, 2020 7:09 pm

Sara you can stock up on oil lamps and wax candles. Many in California are already enjoying the climate virtue of powerless nights and cold days of no heat.
Me? I prefer ammo.

Reply to  Sara
December 2, 2020 9:57 am

At the end of Atlas Shrugged, all the lights went out. Seems they’re trying to make it happen.

Funny how much it gets dismissed while we’re practically living it.

There’s a reason I moved to a rural property capable of going fully off-grid. I’m with you when it comes to understanding – I don’t get what they think is going to happen.

Reply to  TonyG
December 6, 2020 8:42 pm

They’re just mocking me at this point.

November 30, 2020 6:39 pm

So, how to expose this canker to the disinfectant of sunlight?

Pro tip – don’t rely on the msm.

Reply to  Mr.
December 1, 2020 5:34 am

Pre-emptive law suits. More than one side can olay that game. Any lawyers here willing to help out?
Civic duty and all that!

November 30, 2020 6:39 pm

Classic Eric Holder.

Make a list of the US state AG’s, how long they’ve been in office, their connections to Holder and Soros.
Obama is just another high level apparatchik.

There are parallels Eric Schmidt when at google, letting the two (very smart, savants?, Obama not in the same intelligence class) goofballs (Larry and Sergey) capture the attention while Schmidt built the thing.

Tanden, Psaki and the other extreme headliners are just diversions and more apparatchiks.

Biden and Harris are empty placeholders. Willie Brown is a bigger player than either.
Interesting times we live in. 2021 could be much worse than 2020. Learn Mandarin and Cantonese.

Reply to  curly
November 30, 2020 6:55 pm
Reply to  MarkW
November 30, 2020 9:16 pm

Yes, the very model of a burden. Not that “burden”. Obama likes the Green Blight.

November 30, 2020 6:52 pm

Can Biden expand the Supreme Court and stack it? link

Joel O'Bryan
November 30, 2020 6:55 pm

Again we see why the Democrat-Marxists are so Hell Bent on packing the Supreme Court and they need a Senate Majority to do that. The Democraps are using the Roe v. Wade abortion decision on-the-line claim as a way to rev-up their rabid base of feminists, when they are really gunning for something much, much more substantial.

The destruction of the US energy economy and total power over the People is not something they can get through Congress and they cannot get it by Executive Fiat with the current Supreme Court makeup remaining as it is now. Climate has nothing to do with this in reality.

The Democrats actually do not really understand the forces they are about to unleash if they go down these radical paths on everything from climate scam to gun control in their quest for forcing the US public to submit to their will.

They also know that without the US Senate control, they will be unable to force the States to submit to their Climate scam orders and thus they will likely lose the House of Representatives to Republican control in 2022. Then it game over. So they know they have to move quickly this time, while they ignore everything cautionary tale from 12 years ago.

That is exactly what happened to Obama when the Senate 60-vote filibuster prevented ObamaCare from being corrected for its many problems in the written law that was first passed in 2009. ObamaCare became the political disaster it was for Democrats because they couldn’t get correcting bills through the Senate to get them to Obama for a signature, and ObamaCare was a mess. And then they lost the House in 2011, and then the Senate in 2015 in the ensuing political disaster they created.

Reply to  Joel O'Bryan
November 30, 2020 8:12 pm

BLM is pushing something called the BREATH act. It calls for all of the usual nonsense, living wage, guaranteed income even for those who don’t work, reperations for slavery, even if none of your ancestors were slaves. They’ve added some new ones, compensation for any black who has been in jai and the abolition of jails in general.

November 30, 2020 8:09 pm

There is the legal concept, ultra vires. It means that any act of government must be done with legal authority. The EPA shouldn’t be able to make sue and settle agreements for policies that would normally require legislation. It ought to be possible for such agreements to be overturned by the Supreme Court.

I’m having trouble finding the link I seem to remember but …

Companies, Blackboard and Desire to Learn, were parties to a lawsuit about a patent. The Electronic Frontier Foundation (EFF) entered the suit as a friend of the court on the side of Desire2Learn but against Desire2Learn’s wishes. The EFF was worried that Desire2Learn didn’t have the resources to win against Blackboard.

Where the public interest is not being properly protected by the EPA, it seems, based on the above, that someone else could enter the fray as a friend of the court (amicus curiae).

November 30, 2020 8:22 pm

Welcome to the swamp Mk 2!

November 30, 2020 9:06 pm

Treason comes to mind …

Howard Dewhirst
November 30, 2020 9:52 pm

Don’t oil lamps mean whaling is back?
And wax candles should see bees overworked – is this a good thing ?

Hari Seldon
November 30, 2020 10:01 pm

“Globale warming” in Germany: Today morning in South-Germany (241 m elevation) we have now about 15 cm snow, and since hours snowfall. Under the snow were the windows of the cars covered by hard ice. Last time we had snow on 1. December maybe 20-25 years ago (nobody remembers). During the last days we had also almost record cold temperatures. Climate/weather are seemingly not interested in the horror forecasts of the climate-hysterics and charlatans like Greta, Mann, etc.

Reply to  Hari Seldon
December 1, 2020 1:40 am

A sprinkling overnight in southern Burgundy. Measurable amounts further north, I believe. Just weather, of course! Recent minima on the low side but no records broken.

Reply to  Newminster
December 1, 2020 7:46 pm

And as a direct result of the “climate change” farce a school bus came off the road in light snow nr Besancon yesterday, because everyone and their dog in the bureaucracy have convinced themselves snow tyres are no longer ever gonna be needed, – certainly not on Dec 1st.

Try tell the 2 seriously injured 12 yr old school kids what that was all about!

When I was travelling across the Vosges in the early 90s it was a waste of time to try to go over a mountain pass without snow tyres.
It is normal.
What is not normal is trying to claim something like the weather is fixed and predictable, when not even the meteo services can provide a 3 day forecast reliably

So,- after people build housing estates on flood plains, (Nice-Var and its mountain valley floods in sept), they never get prepared for winter weather, then claim the “climate is changing”…this is what you get next…

Hari Seldon
November 30, 2020 10:03 pm

Be careful: A tracking spy-software is attached to the links to WUWT.

Carl Friis-Hansen
Reply to  Hari Seldon
December 1, 2020 1:59 am

We should elect additional broadcasting medias like for example Telegram, which is now very popular in Germany, particularly.
WUWT is a private independent website and difficult for “Net Zero” to close, but we need addition message platforms a la FB, YT, etc. that are simple to use and not controlled by “Net Zero”.

Personally I follow Samual Eckert and Naomi Seibt on Telegram and find it satisfying that there seems to be no significant restrictions, it is easy to use and login to.

Hari Seldon
Reply to  Carl Friis-Hansen
December 1, 2020 9:35 pm

Dear Mr. Friis-Hansen,

The tracking spy-software is definitely NOT from WUWT. Und you should not have any illusion: You can be 100+% sure, that the contacts to Telegram will also be tracked by spy-software by certain organisations.

November 30, 2020 10:39 pm

What are the specific goals? This craziness has a built-in limitation, namely that Americans will notice as energy bills skyrocket and the economy craters. Unless Dems plan to cheat even more egregiously in future elections, they will eventually lose.

Adam Gallon
Reply to  Adam
December 1, 2020 12:07 am

Well, maybe if the Republicans, can find an intelligent, scientifically literate candidate for the position of President, show that they actually care for the lower levels of society, aren’t in the pockets of the gun lobby & aren’t living in the 1800s, can accept that they’ve lost an election with good grace, then they’re in with a chance.

Reply to  Adam Gallon
December 1, 2020 3:46 am

Chinese trolls on the site.

Reply to  Adam Gallon
December 1, 2020 8:17 am

It really is amazing how much hatred progressives have for anyone who doesn’t support them.
Every statment AG makes is a lie, but there is no doubt he believes those lies with every fiber of his fascist little heart.

Joel Snider
Reply to  Adam Gallon
December 1, 2020 11:36 am

Hey Adam – they had one – it’s just that pretentious morons who aren’t that smart are easily fooled by faculty room jargon, and seem to be confused by common language – as the pretend to be concerned with the ‘lower levels of society’.

I’m also trying to remember that progressive who ‘accepted that they lost with good grace’. Didn’t happen. Which is how they justify cheating this time.

It’s pretty simple, and you can set your watch by it – commit a crime, justify it and/or cover it up, by saying the other side’s doing it.

But, by all means Adam, say the same crap again – you and the rest of the Goebbels believers have got nothing else. We all saw what happened, we saw your behavior for more than four years, and I don’t believe for one second any of you ‘most secure election ever’ parrots even believe it yourselves – you just don’t care, and you’re that dishonest.

Carl Friis-Hansen
December 1, 2020 1:37 am

This revolutionary act appears to be on its way, unless the public nip it in the bud with opposition of the kind shown to Obama’s rather less audacious “cap-and-trade” end run.

What about stating with an immediate ban on face mask for children?
Most people care about their children and do not want them harmed. Presenting a study that exposes the agendas disregard to their children’s lives, could help trigger a broad movement against the agenda.

The document I refer to is written by “Care4Truth – Interdisciplinary research team” November 2020 and titled “Are there Risks associated with the use of a mouth-nose-cover (MNC) in children and adolescents?” (translated):

For those who may not be able to download from Telegram, here is the conclusion held in the document.

The available data indicate a very probable and unacceptable risk, especially for children and
young people. It is not known which types of masks are used, what pressure differences
occur and / or whether any previous illnesses exist. Harmful effects on health cannot be
ruled out.
Children wear the masks partly without interruption and even longer than adults should in
professional life (within the framework of occupational health rules and regulations). In
accordance with the prevention principles, the organisational and technical possibilities
should first be exhausted before the wearing of an MNC for protection against SARS-CoV-2
can be considered. Based on the current status and feedback from everyday school life, there
is potential for optimisation here.
A strict BAN on masks for children and adolescents is therefore indicated until scientific
studies can sufficiently prove their harmlessness.

Hokey Schtick
December 1, 2020 1:53 am

Listening to James Delingpoles recent podcast interview with Patrick M Wood, on Technocracy, the Trilateral Commission and the Great Reset makes great background to this article.

Election isn’t over yet though.

December 1, 2020 3:10 am

Kings of old ruled by decree. American Presidents rule by executive order, but there is no difference. If you think you live in a democracy, you are deluded.

Derek Wood
December 1, 2020 4:19 am

You in The US may find that democracy is about to be rescued. Let’s see what emerges when Sidney Powell gets into SCOTUS on Friday. Then, maybe some of you will have to change your minds about Trump!

December 1, 2020 5:41 am

Deja vu. An incestuous relationship between the regulatory state and activists.

Thomas Gasloli
December 1, 2020 7:28 am

“an end-run around the democratic process”

They already did an end-run around democracy with the systematic, comprehensive, multi-state voter fraud. America is ruled by organized crime that are political parties in name only. Just like Putin’s Russia or Belorussia, the entire government (federal, state, local) are just cover for organized crime. And just like Putin’s Russia, there is a lying media and mob violence (BLM, AntiFa) to terrorize you into submission.

No one can stop them now. The USA died on November 3, 2020.

Hari Seldon
Reply to  Thomas Gasloli
December 2, 2020 12:21 pm

Dear Mr. Gasloli,

Negative, pls. In Russia would be an organization like BLM or Antifa extremely short lived. As to the “lying media”, the russian media outlets are only amateur beginners compared to the mainstream US fake news media outlets like CNN, WSJ, NYT, WP, etc. Even the former “Pravda” (the main newspaper of the former soviet communists) was a very objective media compared to the western mainstream fake-news media outlets. I have practical experiences with both sides, so I can compare them. The current situation in the US is excellent for China and Russia: The US will commit a harakiri voluntarily under Biden-Harris, and this will cost nothing for China and Russia. Putin and Xi can ask for the next popcorn and beer watching the flea circus sitting in the chair in front of the TV.

George Daddis
December 1, 2020 7:56 am

Only SLIGHTLY off topic: (Because if the Democrats win the January Georgia Senate runoff they will gain majority in the Senate and thus control both Houses and the White House. Then it will be “game over” and they will implement this and other destructive proposals with ease.)

The GA Constitution (Art II, Sec II, Para II) states:
“A runoff election shall be a continuation of the general election and only persons who were entitled to vote in the general election shall be entitled to vote therein.”
To me that means you must have been registered for the Nov election to vote in January.

However, the State’s website says new registrations will be accepted until Dec 7.

Anyone here have the legal background to explain what to a layman is a contradiction?

Reply to  George Daddis
December 1, 2020 8:20 am

Back when I lived in Georgia, only those who actually voted in the first election could vote in the run-off.
Even if you were eligible and didn’t bother, you still couldn’t vote in the run-off.

Reply to  George Daddis
December 1, 2020 9:49 am

From what I read, Federal supersedes that State provision.

I don’t know the specific Federal rules that are interpreted to say that anyone otherwise eligible can’t be further restricted, and can still register and vote.

December 2, 2020 6:18 pm

The end game, IMHO is to nationalize (or maybe internationalize through the UN) the oil and gas industry. Not only does it provide astronomical revenue, but it also provides control. 2 birds, 1 stone.

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