On Monday, Scott Pruitt, Trump’s Environmental Protection Agency administrator, announced a major change in the way the EPA will be doing business in the future. The agency will no longer pursue what has come to be known as “sue and settle,” whereby environmental groups sue the agency to take a desired action and the agency responds by settling the suit under terms favorable to the group. This change will restore agency rulemaking to its proper function, and deny the Left a major weapon in emplacing extreme, damaging regulations in federal agencies with no input or oversight from affected parties.
The days of regulation through litigation are over. We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress.
Normally, federal regulations are issued only following a period of public scrutiny, wherein all affected parties may participate in development of the regulation. But using “sue and settle,” leftwing activists circumvent this process. They sue the requisite federal agency claiming the agency is not adequately performing its job in some key area. They are aided and abetted in this process with a wink and nod from the target agency, which, instead of fighting the lawsuit, works behind closed doors with the activists to develop desired regulations and then “settle” the lawsuit by entering under a court-approved consent decree. A Chamber of Commerce report, Sue and Settle: Regulating Behind Closed Doors, found that:
[U]nder this sue and settle process, EPA chose at some point not to defend itself in lawsuits brought by special interest advocacy groups at least 60 times between 2009 and 2012. In each case, it agreed to settlements on terms favorable to those groups. These settlements directly resulted in EPA agreeing to publish more than 100 new regulations, many of which impose compliance costs in the tens of millions and even billions of dollars.
Sue and settle cases under the Obama administration doubled from prior years. Summarized from Sue and Settle, the following are three of the most costly:
Chesapeake Bay Clean Water Act Rules – Environmental groups sued the EPA for not adequately protecting the Bay. The consent decree was signed with no public input, and no opportunity to evaluate the science behind its conclusions. The Sue and Settle report states:
The program sets land use–type limits on businesses, farms, and communities on the Bay based upon their calculated daily pollutant discharges. EPA’s displacement of state authority is estimated to cost Maryland and Virginia up to $18 billion to implement.
Members of Congress objected to this consent decree and raised concerns that out-of-court settlements were being used to obtain authority not granted to EPA by Congress:
We are concerned that EPA has demonstrated a disturbing trend recently, whereby EPA has been entering into settlement agreements that purport to expand federal regulatory authority far beyond the reach of the Clean Water Act and has then been citing these settlement agreements as a source of regulatory authority in other matters of a similar nature…
Utility maximum achievable control technology (MACT) – Rules governing air quality standards for air pollutants from power plants. The Clean Air Act didn’t require EPA impose such rules, but they were imposed anyway, with no input from the utility industry. Annual cost: $9.6 billion.
Regional Haze Implementation Rules – Congress mandated that states devise their own rules for reducing haze in national parks for aesthetic (not health) reasons. Through consent decrees from five separate lawsuits, and without state input or knowledge, the EPA imposed standards 10 to 20 times more costly than existing state plans. This usurped state authority and the intent of Congress at a cost to state taxpayers of $2.2 billion.
A look at the environmental groups that use this method is revealing in itself. At the top of the chart is the Sierra Club, the most influential environmental group and also one of the most extreme, supporting everything from nuclear disarmament to open borders under the umbrella of “saving the earth.”
Source: U.S. Chamber of Commerce
It was not always so. It is worth taking a short segue into Sierra Club history because it serves as an object lesson showing how the Left usurps an issue.
The Sierra Club was founded in 1892 by John Muir, who intended it to be the West’s version of the Appalachian Mountain Club. Until 1952, it was a modest organization of “nature enthusiasts, hikers and trailside conservationists.”
In 1952, Berkeley, California native, David Brower (now deceased) became the club’ first executive director. He grew Sierra Club from about 7,000 members to a monolith of environmental extremism which claims about 3 million members today.
Under his leadership the club accomplished a number of arguably good things, like establishing the Redwood and North Cascades national parks, but has devolved into little more than a shameless promoter of Democratic politicians and radical policies.
Brower made it that way. He was a radical leftist who sought government control over everything. Brower was even invited to the Soviet Union — one of the worst polluters on earth. Somehow that fact escaped him.
Brower pioneered in the method many leftwing organizations have since used to introduce ever more extreme groups and ideas into the mainstream. He explained the process:
The Sierra Club made the Nature Conservancy look reasonable. I founded Friends of the Earth to make the Sierra Club look reasonable. Then I founded Earth Island Institute to make Friends of the Earth look reasonable. Earth First! now makes us look reasonable. We’re still waiting for someone else to come along and make Earth First! look reasonable.
For those who don’t know, Earth First! is the group branded by the FBI as domestic terrorists. It is responsible for tree-spiking and other such deadly sabotage against the logging industry. It’s founder, Dave Foreman, who conspired with David Brower to create Earth First!, has said this:
We must make this place an insecure and inhospitable place for capitalists and their projects… We must reclaim the roads and plowed lands, halt dam construction, tear down existing dams, free shackled rivers and return to wilderness millions of tens of millions of acres of presently settled land.
How did environmentalism morph from a movement dedicated to preserving nature to one dedicated to the destruction of man? It is a microcosm of the Left’s story. Greenpeace co-founder Patrick Moore witnessed the transformation firsthand and quit in the 1980s when he saw it turning into an organization of extreme Left fanatics bent on destroying Western society:
Some, like myself, realized the job of creating mass awareness of the importance of the environment had been accomplished and it was time to move on from confrontation… But others seemed bent on lifelong confrontation…
In order to remain confrontational as society adopted all the reasonable demands, it was necessary for these anti-establishment lifers to adopt ever more extreme positions, eventually abandoning science and logic altogether in zero-tolerance policies. In addition, with the ending of the Peace Movement, which was decidedly left-wing politically and essentially anti-American, many peaceniks moved into the environmental movement brining their far-left agendas with them. This was very unfortunate as environmentalism by nature should be down the middle politically. Nature is not left or right and there are good ideas on both sides of the political spectrum, in particular market-based policies on the right and environmental regulations on the left…
Moore characterizes the true nature of today’s environmental movement:
It is anti-human. The human species is characterized as a “cancer” on the face of the earth…
It is anti-technology and anti-science. Eco-extremists dream of returning to some kind of technologically primitive society…
It is anti-organization. Environmental extremists tend to expect the whole world to adopt anarchism as the model for individual behavior…
It is anti-trade. Eco-extremists are not only opposed to “free trade” but to international trade in general…
It is anti-free enterprise. Despite the fact that communism and state socialism has failed, eco-extremists are basically anti-business…
It is anti-democratic. This is perhaps the most dangerous aspect of radical environmentalism. The very foundation of our society, liberal representative democracy, is rejected as being too “human-centered.”
It is basically anti-civilization. In its essence, eco-extremism rejects virtually everything about modern life. We are told that nothing short of returning to primitive tribal society can save the earth from ecological collapse. No more cities, no more airplanes, no more polyester suits. It is a naive vision of a return to the Garden of Eden.
The “sue and settle” strategy fits right in with everything else the Left does. It is unethical, unfair and destructive. They have been at it for decades, flying under the radar with tactics like this. We have been their hapless victims. The Trump administration has taken some significant steps to roll back the damage. This is one of them. Truly a breath of clean air.
Good job, Administrator Pruitt!