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The Sue And Settle Racket


[Note:  This piece was originally posted at Forbes.com on May 27, 2013]

After many years of being ignored by the news media, the “sue and settle” strategy employed by anti-development groups to affect changes in federal environmental regulations via the courts rather than the appropriate regulatory process is slowly beginning to attract attention. Perhaps the elevating attention is due to the fact that this strategy, which has been employed by these groups for decades, has elevated into a pretty robust cottage industry in recent years.

This piece in the WashingtonExaminer discusses the abuse of the process as it relates to the Environmental Protection Agency (EPA) and its regulation under several major statutes, such as the Clean Air Act and the Safe Drinking Water Act, but this strategy is also frequently deployed with the US Fish and Wildlife Service (USFW) in efforts to force listings under the Endangered Species Act (ESA).

The Examiner piece does a good job of describing the basics of how the strategy works:

“First, the private environmental group sues the EPA in federal court seeking to force it to issue new regulations by a date certain. Then agency and group officials meet behind closed doors to hammer out a deal. Typically in the deal, the government agrees to do whatever the activists want. The last step occurs when the judge issues a consent decree that makes the deal the law of the land. No messy congressional hearings. No public comment period. No opportunity for anybody outside the privileged few to know how government regulatory policy is being shaped until it’s too late.”

The Examiner cites an August 2011 GAO study that found that, from FY 1998 through FY 2010, cases brought by groups like the Sierra Club, NRDC, Wild Earth Guardians, and the Center for Biological Diversity cost the Justice Department – and by extension, the U.S. taxpayer – $43 million in legal expense defending the EPA. But because current law requires the government (taxpayers) to reimburse many successful plaintiffs for attorney fees and other costs, the study found that the federal government was forced to cough up an additional $16 million from 2003 through 2010.

If you think that’s an outrage, the story just gets worse when you look at what USFW was forced to do related to “sue and settle” cases brought related to the ESA. An April 2012 study released by GAO found that, from FY 2001 through FY 2010, the government was forced to reimburse many of these same groups more than $21 million.

Now, you may be sitting there thinking, “golly, isn’t that really a small price to pay for using science to protect plants and animals that are in danger of becoming extinct,” and that’s where your understanding of the strategy behind all of this goes completely off the rails. Science and the protection of truly endangered species literally have nothing to do with it.

Where the ESA is concerned, the strategy employed by these radical organizations is actually all about stopping human progress. Far from being focused on species that are actually rare and in danger of disappearing from the face of the earth, the strategy instead focuses on suing USFW to list species that exist in abundance over large geographic areas under the theory that human expansion and industrial projects are diminishing their natural habitat. The more abundant the species, the greater its geographic extent, the greater the negative impact it can have on human progress. Good recent examples of abundant species pursued under this strategy include the Dunes Sagebrush Lizard, the Sage Grouse, and the Lesser Prairie Chicken.

You don’t have to believe me on this – you can just read the statements of Kieran Suckling, head of the Center for Biological Diversity (CBD), an anti-development group that has been suckling at the teat of the federal government via “sue and settle” for almost two decades now. In a wide-ranging interview in the High Country News in 2009, Mr. Suckling was asked if his organization’s hiring of activists who lack science degrees had hurt CBD’s effectiveness. Here is how he answered:

“No. It was a key to our success. I think the professionalization of the environmental movement has injured it greatly. These kids get degrees in environmental conservation and wildlife management and come looking for jobs in the environmental movement. They’ve bought into resource management values and multiple use by the time they graduate. I’m more interested in hiring philosophers, linguists and poets. The core talent of a successful environmental activist is not science and law. It’s campaigning instinct. That’s not only not taught in the universities, it’s discouraged.”

Yes, we wouldn’t want the “environmental” (read: anti-development) movement to become overly professional, now, would we? The reality is that CBD and other radical groups like it view concepts like “sound science” as bothersome impediments to success in what they consider a never-ending political campaign.

The overall anti-societal mindset that has overtaken these groups is no different than the contempt for ordinary society that dominated the now-moribund Occupy Wall Street movement. Mr. Suckling’s contempt also runs to those who staff the agencies he assaults with CBD’s “sue and settle” tactics, as he brags about the “psychological warfare” CBD and the other anti-development groups wage on these bureaucracies:

“New injunctions, new species listings and new bad press take a terrible toll on agency morale. When we stop the same timber sale three or four times running, the timber planners want to tear their hair out. They feel like their careers are being mocked and destroyed — and they are. So they become much more willing to play by our rules and at least get something done. Psychological warfare is a very underappreciated aspect of environmental campaigning.”

Bullying, ruining reputations, psychological warfare – it all sounds like something out of “The Sopranos”, doesn’t it?  Try to imagine the outrage that would emanate from the nation’s news media if the leader of an oil and gas industry trade association, or CEO of a coal company bragged about deploying similar anti-government, anti-societal tactics in an interview. No industry leader would keep his job for more than a few days after uttering such statements in public.  Yet Mr. Suckling remains firmly ensconced in his lofty perch four years later.

Double standards such as this are nothing unusual, and not that big a deal in and of themselves. But “sue and settle” has become quite a racket, and the fact that the taxpayers are forced to pay for Mr. Suckling’s and his contemporaries’ serial abuse of these major environmental laws is a big deal indeed.   This racket deserves more attention from the media, and a focused reform effort by congress and the Obama Administration.

“Sue and Settle” is not how government should operate in this society.



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