Policy: Environment & Energy

Big Green's 'sue-and-settle' strategy draws pushback from states, Congress

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Opinion,Ron Arnold,Columnists,Energy and Environment,Law,Magazine,Endangered Species Act

Scott Pruitt is Oklahoma's attorney general and he's fed up with Big Green's outrageously destructive sue-and-settle attacks using endangered species as a weapon to obliterate America's burgeoning oil and gas production.

Pruitt was so fed up that on March 17 he and a coalition of energy groups filed a pioneering lawsuit – The State of Oklahoma et al. v. U.S. Department of the Interior – for collusion in violating federal law.

“Sue and settle” is the polite way to say that federal agency greenies invite old friends in Big Green groups to sue the agency so they can jointly select a species in, for example, oil and gas country, and go to court to “force” it to be listed as “endangered” or “threatened” so its range can be declared untouchable “critical habitat,” which stops production there.

In time of war that would be called sabotage. In time of Obama it’s called business as usual.

I asked Pruitt by email what it was in particular about sue-and-settle tactics that sparked Oklahoma's lawsuit. He told me, “That's what the Fish and Wildlife Service did in 2011 when it agreed to arbitrary and aggressive timelines on deciding the listing status of the lesser prairie chicken to settle a lawsuit from an environmental group.

“A ‘threatened’ listing would restrict land use in the bird’s five-state habitat that includes Oklahoma.”

The wide-ranging lesser prairie chicken had allegedly been deliberately selected by WildEarth Guardians and at least two FWS bureaucrats for maximum damage to resource production – the implicated two are among the named defendants in Oklahoma’s 47-page filing papers.

WildEarth Guardians was the former employer of “crucify them” Al Armendariz, the Environmental Protection Agency official who was removed after his abuses of energy producers came to light.

Pruitt was more than blunt in his email: “The decision on the lesser prairie chicken appears to be less about sound science and saving endangered species, and more about federal agencies partnering with like-minded environmental groups to thwart development and destroy private property rights. This scheme undermines the rule of law and Congressional authority. My office will vigorously pursue our challenge of the FWS and other federal agencies that engage in 'sue and settle' tactics."

The latest word is that Kansas and North Dakota are joining Oklahoma's lawsuit - an amended complaint will be filed soon.

Clearly, courage to take on the federal nemesis is not dead in America. Every state with standing to sue needs to come and stand beside these heroes — they’re up against a defiant Goliath that scoffs at the rule of law and will resort to any scheme to cheat and bully its citizens.

Congress has also formed ranks against Big Green’s “sabotage by species” scam with four bills drafted to “update the Endangered Species Act” — framed narrowly enough that bipartisan support is possible — including one with the title, Endangered Species Litigation Reasonableness Act, aimed directly at sue-and-settle arrangements.

Michigan Republican Bill Huizenga and 12 co-sponsors introduced the bill, which cleverly doesn't outlaw sue-and-settle deals, but would simply limit attorneys' fees to the same $125 per hour cap set by the Equal Access to Justice Act -- which doesn't currently apply to filling the pockets of greenie lawyers in ESA suits.

I asked Huizenga by email what effect he expected his bill to have. He replied, “For too long, litigating attorneys have taken advantage of the Endangered Species Act, raking in millions of taxpayer dollars at a rate as much as $500 an hour. This does nothing to benefit species or people and is not productive. My bill seeks to remedy this unconscionable problem.”

With 461,098 government dollars of New Mexico-based WildEarth Guardians’ $1,834,998 total 2012 revenue reduced to about one-fifth of the accustomed silk stocking rate, it’s wouldn’t be so much fun, but it wouldn’t stop them from suing. WEG got 41 foundation grants of $824,389 in the five years including 2012 – mostly from a Seattle Microsoft founder, a New York investment banker, and a Pennsylvania oil company heir.

There will be a House Natural Resources Committee hearing April 8 on all four bills. Here are the three others:

• The 21st Century Endangered Species Transparency Act, which would require data used by federal agencies for ESA listing decisions to be publicly accessible through the Internet.

• The Endangered Species Recovery Transparency Act, which would require the Fish and Wildlife Service to track, report to Congress, and make available online: 1) funds expended to respond to ESA lawsuits; 2) the number of employees dedicated to litigation; and 3) attorneys fees awarded in the course of ESA litigation and settlement agreements.

• The State, Tribal, and Local Species Transparency and Recovery Act, which would require the federal government to disclose to affected states all data used prior to any ESA listing decisions and require that the “best available scientific and commercial data” used by the federal government include data provided by affected states, tribes, and local governments.

We've never before seen a congressional handling of ESA agency wrongs as likely to stir confusion and disagreement among officials. It can be expected to cause Obamacrats to circle the wagons and, in the best-case scenario, start shooting inside.

RON ARNOLD, a Washington Examiner columnist, is executive vice president of the Center for the Defense of Free Enterprise.
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