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Opinion: Columnists

Ron Arnold: Are backroom sue-and-settle deals actually sweetheart lawsuits?

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An important new report from the U.S. Chamber of Commerce entitled "Sue-and-Settle: Regulating Behind Closed Doors," shines a light on the backroom manipulations now common between Big Green activists and the U.S. Environmental Protection Agency -- among others -- to impose regulations unlikely to gain approval in Congress.

The report found that between 2009 and 2012, the Sierra Club was in first place, with 34 cases filed; the Natural Resources Defense Council had nine and the Environmental Defense Fund had five in a long list of plaintiffs.

Sue and settle allows lawyers for Big Green groups to walk into any EPA office and say, "We want this exact rule in place within 90 days," and get a response something like, "Sure, pal. Anything else?"

How can that be? Every major environmental law today -- Clean Air Act, Clean Water Act, and so on -- contains provisions for "citizen suits" that allow "citizen attorneys general" to sue alleged violators in federal court.

The problem is that Congress did not intend to empower Big Green attorneys routinely to chop off the citizen suit at the knees by removing the court trial.

But that is exactly what happens with sue and settle: Big Green activist group files suit against agency, agency negotiates chummy back-room settlement with the lawyers, then gets sham settlement rubber-stamped by federal court and bypassing a trial completely.

Judges routinely refuse to "second guess agency discretion, which was given by Congress by statute," according to the chamber's report.

With sue and settle, the agency can say "the court made us do it." Those most affected by such a new rule -- the regulated and their customers -- had no warning, no ability to intervene on their own behalf in open court, no access to justice at all.

They have been deprived of their Fifth Amendment civil right of due process. But convoluted case law says, "That's OK because avoiding regulation isn't a right." That, of course, wasn't the question.

But what if the sue and settle sequence --1) Big Green files a lawsuit; 2) agency negotiates a settlement -- gets reversed? What if Big Green negotiates an outcome with the agency and then files a suit to force that prearranged outcome?

And what if, as the chamber report stated, "several environmental advocacy groups have made the sue-and-settle process a significant part of their legal strategy"?

Does that look like "pattern and practice," as they say in civil rights and conspiracy cases? Does that look like sue and settle has been corrupted into a "sweetheart lawsuit," in which an agency wants to be sued to pursue its own goals rather than those assigned it by Congress?

A month ago, Defenders of Wildlife filed a joint DoW-EPA consent decree with the court on the same day they filed their complaint against EPA. How did they do that? Was that a sweetheart lawsuit?

It's not impossible to stop federal wrongdoing. Last Friday, Chief Judge Robert C. Jones of the U.S. District Court of Nevada issued a ruling in a complicated case, finding that federal agents "entered into a literal, intentional conspiracy" to deprive ranchers of their due process rights, and two agents were referred to the U.S. attorney for possible prosecution for criminal obstruction of justice.

Congress may be able to stop sue and settle abuse, but laws don't touch the lawless sweetheart lawsuit. It might help to require federal agencies to publish online all lawsuit-related meetings with the names and affiliations of all present.

What is most needed, however, is for EPA's top cop to investigate for employees of that agency who are conspiring to deprive Americans of their due process rights and for obstruction of justice within his agency -- as described in this column.

Consider that my call for EPA Inspector General Arthur A. Elkins Jr. to undertake such an investigation. Those interested can reach his office at 202-566-2391.

Washington Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.

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