In a scheme known as “sue and settle,” nongovernment organizations that are ideologically aligned with the Biden White House sue one of its agencies, and the two sides then settle on an agreement that favors the preferred outcome of both.
Nominally the two sides are adversaries in litigation, but in reality, they are aligned, critics say, and the process thus changes policy without input from Congress or the public.
“These types of collusive lawsuits in which a ‘sue and settle’ scheme is used to change, twist, or waive compliance with federal law are anti-democratic and a fundamental betrayal by the executive branch of its constitutional duty to enforce and defend the laws passed by Congress,” Heritage Foundation legal fellow Hans von Spakovsky said. “It is also a basic betrayal of the rule of law.”
The most recent example involves the Sierra Club and two separate federal agencies. A court decision in August led to the National Marine Fisheries Service, which is part of the Department of Commerce, agreeing to declare 6 million acres in the Gulf of Mexico off-limits for future oil and gas leasing.
In a related move, the Bureau of Ocean Energy Management, a unit of the Interior Department, announced new guidance for ships traveling in the habitat of the Rice’s whale, with speed limits, bans on traveling at night, and orders to stay at least 500 meters from the whales.
Critics point out that the restrictions do not apply to ships engaged in fishing or the construction of offshore wind facilities, charging that the real impetus is to promote green energy while restricting fossil fuel extraction.
However, those restrictions were overturned Thursday night by a federal judge, though the government is expected to appeal.
“The process followed here looks more like a weaponization of the Endangered Species Act than the collaborative, reasoned approach prescribed by the applicable laws and regulations,” Judge James Cain wrote in his opinion.
The Sierra Club and NMFS did not respond to questions from the Washington Examiner.
Kristen Monsell, the Center for Biological Diversity’s attorney for oceans, said she was “heartbroken” over the decision.
“The Gulf doesn’t belong to the industry,” she said. “It belongs to the people and wildlife living there, and it’s time to start saying no to harmful drilling activities.”
Concerns raised by the judge have been made by conservatives throughout President Joe Biden‘s time in office.
The Trump administration issued a memo in 2017 vowing to end “sue and settle,” and the Chamber of Commerce alleged that the Obama administration chose not to defend itself against more than 60 lawsuits, resulting in more than 100 new regulations.
But Biden revoked the memo soon after taking office.
“[Trump officials] served to erode public trust by claiming to correct a problem that did not exist,” Environmental Protection Agency General Counsel Jeff Prieto said at the time.
Under Biden, the EPA spent over $6.9 million in 2021 and 2022 on attorneys fees for settlements under the Clean Air, Clean Water, and Endangered Species Acts, the Washington Examiner reported in August, whereas agency payouts were $3.6 million under former President Donald Trump and $5.7 million during Barack Obama‘s second presidential term.
The House Oversight Committee hit the EPA and Interior Department in July 2022 for what it described as incentivizing “sue and settle” schemes.
“The practice of ‘sue and settle’ allows special interest groups to achieve regulatory goals through litigation – in secret – and bypass the legislative and regulatory process,” lawmakers on the committee wrote.