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Policy: Environment & Energy

'Sue and settle' deals are regulation-by-consent-decree

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Opinion,Op-Eds,Oklahoma,Energy and Environment,Attorney General,Endangered Species Act

Amidst the dysfunction of Washington, an equal concern of Americans is the ever-expanding reach of federal agencies into their lives and businesses.

All too often, agencies ignore the laws on the books and take action to expand their authority to impose a political agenda. This undermines the rule of law and our system of representative government.

Federal agencies are turning to a new scheme -- "sue and settle" -- to further expand their reach and authority. The tactics call for federal agencies to settle, rather than fight, lawsuits filed by like-minded groups.

A consent decree is then reached behind closed doors and is later approved by the courts. Consent decrees are an appropriate avenue to settle a lawsuit but should not be used by federal agencies to regulate through litigation. That is precisely what’s happening, though, under sue and settle.

The sue and settle consent decrees usually bind the affected parties — states and industry — to stricter regulations and shorter timelines than those originally imposed by congressional laws.

Again, this takes place without input from those affected. In fact, federal agencies have entered into consent decrees on the same day a lawsuit was filed.

The settlements are having a crippling effect on the economy, and because they take place without public input, the settlements deny attorneys general the ability to represent the interests of their states, businesses and citizens.

In 2011, the U.S. Fish and Wildlife Service entered into a consent decree with like-minded environmental groups to settle a lawsuit over the endangered species listing status of the lesser prairie chicken and 250 other species.

The agency agreed to a truncated timeline to decide the status of the bird. To put that into perspective, between 1994 and 2006, environmental groups petitioned FWS to list an average of 20 species per year.

Since 2007, however, FWS has received petitions to list more than 1,250 species — roughly the same number of species that have been listed over the past 30 years.

The environmental statutes lay out three categories into which species can be placed. Under the consent decree, FWS agreed only to consider two of the three categories in determining the status of the bird.

Oklahoma has filed a lawsuit against the Department of Interior and FWS for engaging in sue and settle tactics in reaching the consent decree.

Oklahoma, working with industry and other stakeholders, spent $26 million to develop a voluntary and comprehensive conservation plan to protect the bird. Yet those efforts were undone without input from the state because of the consent decree.

The FWS listed the lesser prairie chicken as "threatened" under the Endangered Species Act, greatly restricting land use in the five-state habitat of the bird.

It's not a coincidence the bird has been a target for environmental groups because its habitat spreads across five states that are home to some of the most promising land for oil and natural gas development.

It’s also not a coincidence the listing categories considered by the FWS were the only two that would have required land use restrictions. It’s becoming increasingly clear this issue isn’t about sound science or saving endangered species.

It’s instead about using the courts to impose a political agenda. The three branches of government each serve as a check upon the other.

Let us not forget the states, serve an equally important role as a vertical check on the power of the federal government.

My office, along with the other state AGs involved in the lawsuit, will continue our vigorous pursuit of this lawsuit to hold the FWS and other federal agencies accountable for such unlawful tactics.

Republican Scott Pruitt is Oklahoma's Attorney General.
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