RUTHFULLY YOURS

There’s a new day dawning at the Environmental Protection Agency. On October 16, EPA administrator Scott Pruitt announced that he is pulling the plug on the “sue and settle” strategy his predecessors used to impose new regulations and funnel large amounts of cash to their allies in the environmental movement.

Under President Obama, the sue-and-settle gambit was raised to an art form. The administration would invite special-interest groups to sue the EPA over a regulation that it wanted to change but couldn’t, at least not expeditiously. Instead of fighting the lawsuit, the EPA would then almost immediately surrender, agreeing to settle. Inevitably, the settlement entailed consenting to whatever outrageous demands were being made by the agency’s handpicked “adversary.”

As Pruitt noted, this tactic allowed the Obama administration to “circumvent the regulatory process set by Congress,” avoiding the requirements of public notice that are supposed to give citizens and industry a chance to comment on changes in existing regulations or proposed new ones. Under the settlements that resulted, the EPA would often commit to imposing changes that went far beyond what the law required, short-circuiting statutory deadlines and timetables along the way. And even though the EPA settled the friendly suits in record time, it still paid tens of thousands of dollars in taxpayer money to cover the plaintiffs’ legal bills. Between 2009 and 2012, the EPA chose not to defend itself in 60 such lawsuits. In each case, the agency agreed to settle on terms favorable to the advocacy groups, according to a 2013 report of the U.S. Chamber of Commerce.  These “sue and settle” lawsuits resulted in more than 100 new federal rules estimated to impose $100 million in annual regulatory-compliance costs.

The Endangered Species Act (ESA) is one of the laws that proved especially ripe for friendly lawsuit abuse. It attracted many so-called “deadline” lawsuits, in which plaintiffs sue the government for failing to meet a deadline — like responding to a petition to add a species to the endangered list.

For example, the Center for Biological Diversity (CBD) petitioned the U.S. Fish and Wildlife Service (USFWS) to re-declare a bird found on the Pacific island of Tinian as endangered. A 90-day clock started ticking as soon as the petition was filed. This particular bird had already been placed on the endangered-species list once, when the USFWS officials misinterpreted a reported sighting of 40–50 Tinian monarchs as being a population estimate for the entire island. In fact, the island teemed with tens of thousands of the birds. Eventually, the agency recognized its blunder; it disingenuously proclaimed the bird “recovered” and removed it from the endangered list.

Among the reasons the CBD cited in arguing that the bird should be put back on the list is that its small range — Tinian is roughly 40 square miles in size — makes it susceptible to “stochastic” — a fancy word for “random” — events that could supposedly wipe it out. But the Tinian monarch population has proved plenty tough. During World War II, the birds survived 43 days of naval bombardment in advance of the U.S. amphibious landing on the island. In the day before the marines hit the beach, Navy battleships shelled the island with hundreds of rounds from 14- and 16-inch guns; the Army hit it with more than 7,000 artillery rounds, and American warplanes dropped over 100 tons of ordinance — including napalm. Somehow, the Tinian monarchs survived not only all this but also the subsequent ground battle, a typhoon, and the introduction of a prolific shrub that took over 40 percent of the island’s forested areas. The bird was reported to be “abundant” shortly after the war.

Nevertheless, in September 2015, USFWS determined that CBD’s petition to re-add the bird to the endangered list “may be warranted” and ordered a status review for the species. This started another clock ticking.

While many regulatory clocks have been wound in the last decade, only a small number of environmental groups have done most of the winding. Buried within a U.S. Government Accountability Office (GAO)) review of 141 ESA deadline lawsuits resolved between Fiscal Years 2005 and 2015 are data revealing that a mere ten environmental groups accounted for more than 80 percent of the settlements reached.

Two environmental groups, the CBD and Wild Earth Guardians, have turned endangered-species litigation into a substantial business. They accounted for over half of all the ESA deadline lawsuits and enjoyed remarkable settlement rates: 81 percent and 92 percent, respectively.

In 2010 alone, the Wild Earth Guardians accounted for 17 of 33 resolved suits and racked up an astonishing 94 percent settlement rate, presumably collecting huge amounts in attorney’s fees from taxpayers to help fund its continued litigation.

But the sue-and-settle gravy train may soon be sidetracked — at least at the EPA.

On Monday, Pruitt declared “the days of regulation through litigation are over.” He is directing the agency to take a series of steps intended to increase transparency, improve public participation, and provide direct accountability for the actions that EPA officials take. That includes forbidding the practice of entering into any settlements that “exceed the authority of the courts” and requiring that any proposed settlement be published for a 30-day public comment period.

Congress could, and should, make such improvements permanent. These types of changes are needed not just at the EPA, but at every federal agency — including the Fish and Wildlife Service — to prevent the abuse of power perfected by the Obama administration.

— Rob Gordon is a senior research fellow at the Heritage Foundation. Hans von Spakovsky is a senior legal fellow at Heritage’s Meese Center for Legal and Judicial Studies.