‘Regulation Through Litigation’: Under Biden’s Lawfaring Eco-Politics, ‘Sue And Settle’ Is Back

When the Biden administration announced in 2022 that it would remove some four million acres of federal land in Western states from oil and gas exploration, environmental groups hailed the decision as a milestone in their fight against global warming.

“With the oil and gas industry bent on despoiling America’s public lands and fueling the climate crisis, this is a critical opportunity for the Biden administration to chart a new path toward clean energy and independence from fossil fuels,” said Jeremy Nichols, a director with WildEarth Guardians. [emphasis, links added]

But Nichols could just as easily have slapped himself on the back: The administration’s move was part of a private settlement of a lawsuit filed by WildEarth and others over the objections of energy consortiums, whose efforts to intervene in the matter were dismissed.

A similar thing happened last August, when the Biden administration announced it had agreed to exclude six million acres of the energy-rich Gulf of Mexico seabed from exploration to settle a lawsuit brought by environmental groups, including the Sierra Club – an announcement that triggered operational delays for the industry and expensive litigation to overturn.

Administration critics say these moves reflect the resurgence of a practice embraced by the Obama administration and rejected during Donald Trump’s presidency: “sue and settle.”

The tactic is simple: An advocacy group sues a federal agency for failing to enforce laws or regulations. Agency officials and the plaintiffs then come to a private agreement and that deal is ratified by the courts via a binding consent decree.

The practice is common at every level of government. New York City, for example, is obligated to house and feed tens of thousands of migrants because of a consent decree it entered into to settle a 1979 lawsuit brought by advocates for the homeless.

But it is most prevalent in the environmental field, where well-funded groups commonly sue the Environmental Protection Agency (EPA) or the Bureau of Land Management (BLM) within the Department of the Interior (DOI), alleging failure to enforce provisions of the Clean Air Act or regulations regarding federal leases for energy production.

Although such consent decrees do not have the force of laws passed by Congress or regulations issued by the government that have gone through formal review and allow for public comment, they set the rules of the road.

Critics say it has allowed the government to advance policy goals that cannot be achieved through normal democratic channels.

“It’s not really an adversarial lawsuit, and with a settlement agreement and consent decree the case is never really over,” said Dave Tryon, director of litigation at the free-market Buckeye Institute. “The EPA is anxious to increase its power and control; it’s always happy to expand that.”

The legal maneuver represents, according to this view, a return to the proverbial smoked-filled backrooms of politics.

Huddled privately, without input from citizens or businesses that may be adversely affected by the decisions – let alone the public at large – lawsuits that often involve parties more simpatico than adversarial are settled.

The plaintiffs and defendants are familiar to one another from years in the environmental lobbying and litigation world – and because of the “revolving door” between environmental groups and Democratic administrations.

These like-minded players approach the issue seeking similar goals, a process that has only intensified with the Biden administration and leftist environmental groups sharing the belief that global warming is an existential threat.

“Overall, it’s harkening back to the bad old days – they do this in order to avoid scrutiny and bypass the regulatory process,” said Thomas Pyle, president of the American Energy Alliance, an advocacy arm of the Institute for Energy Research.

“It’s a way to advance an agenda that may be rejected by voters. It’s a nefarious practice in which the agency and the environmental groups get what they want.”

Sue and settle is part of an even broader effort known as “lawfare,” in which political parties and advocacy groups seek to achieve their goals not through elections or legislation but in the courts.

This encompasses everything from President Trump’s “stop the steal” efforts to overturn the 2020 election through the courts to myriad efforts by Democrats, whose lawfare campaigns have ranged from getting courts to confiscate Trump’s businesses and charge him criminally to removing him from the 2024 ballot.

Settlements are common in the courts. They are often welcomed as a way to avoid costly, protracted litigation while also clearing dockets. But sue-and-settle is different, said Paul Seby, an attorney with Greenberg Traurig in Denver, who often represents the state of North Dakota in energy matters.

“Those deals where someone is asked to enforce mandatory actions – that’s all legit and there’s no real beef with that,” Seby said. “The problem is when there is footsie going on between an agency of the Department of Justice and a non-governmental organization. That’s where they make a deal in a consent decree that says a department must do something more than just comply with some deadline they missed.”

The Western states’ suit, filed in the D.C. federal circuit, is a good example, according to critics. The lawsuit was first filed against the Bureau of Land Management in 2016, alleging insufficient attention had been paid to global warming when approving leases in Wyoming, Utah, and Colorado.

So the BLM and the states agreed to redo studies under the National Environmental Policy Act (NEPA), and, after concluding that the leases complied with the law, the Trump administration-led agency approved the leases again.

Environmental groups filed another lawsuit in 2021 and Biden’s BLM settled the case, in effect giving the groups what they wanted.

“You can always do more ‘analysis’ as the environmental groups demand, and the usual remedy is to redo the analysis,” said Kathleen Sgamma, president of the Western Energy Alliance, another industry consortium that sought to intervene in the case.

“But instead of the small things, BLM will agree to reopen the whole resource management. In other words, BLM just agrees to do what the plaintiffs wanted.”

The Trump administration had moved to stop the practice. In 2017, then-EPA administrator Scott Pruitt issued a memo prohibiting the agency from entering into consent decrees with non-governmental actors and also began publicizing any such suit when it was filed. “The era of regulation through litigation is over,” Pruitt declared.

Those policies were rescinded by Biden’s EPA chief Michael Regan, who spent eight years as a vice president with an advocacy group involved in many such suits, the Environmental Defense Fund.

One sign of how the practice has taken off under the Biden administration is the explosion in plaintiffs’ legal fees as part of settlements – meaning taxpayers foot the bill for environmental lawsuits.

In the two years since the Biden administration lifted most of the Pruitt memo restrictions, those fees have jumped to almost $7 million, according to a January report from the fiscal watchdog group OpenTheBooks.

That is nearly double the total of Trump’s four years of $3.6 million. It is also more than the $5.8 million in attorney fee payouts for suits brought under the Clean Air Act, the Clean Water Act, and the Endangered Species Act during Obama’s second term, OpenTheBooks found.

The EPA disputed the characterization that it has radically changed course under Biden. While it acknowledged Regan’s “litigation transparency memorandum revoked and replaced” Pruitt’s October 2017 memo, an EPA spokesperson insisted the agency “has not discontinued or rolled back and practices under Administrator Pruitt’s 2017 directive that the prior Administration had been maintaining.”

“EPA has taken steps to enhance public awareness of environmental claims against the Agency and to provide an opportunity for public review and comment on proposed settlement of those claims,” an agency spokesperson said.

However, the EPA did not respond to RCI’s interview requests and did not answer questions about how many settlement agreements it may have reached overall with specific plaintiffs. So the exact number of consent decrees signed with them remains uncertain.

The EPA does have a place on its website that lists more than 500 lawsuits against it going back to the Obama administration.

That shows that the significantly higher attorneys’ costs under Biden have happened with fewer settlements overall than in Obama’s second term or Trump’s term.

An EPA collection of links to consent decrees is not formatted by date, and both congressional committees and attorneys for energy companies believe it is incomplete.

“There [are] lawsuits sometimes we don’t know about and there are just so many cases where you would want or need to intervene,” said Sgamma of the Western Energy Alliance.

That intervention can sometimes succeed but it is expensive. In the Gulf of Mexico exploration settlement, a lawsuit filed by the American Petroleum Institute, the state of Louisiana, and Chevron managed to overturn the agreement reached between federal agencies and environmental NGOs.

That victory was upheld by the 5th Circuit Court of Appeals and the lease sales went through in December – three months after the date initially mandated for them by Congress.”

Most of the environmental groups RCI contacted did not respond to questions or an interview request – including the Sierra Club, the Center for Biological Diversity, and the Environmental Defense Fund. But the National Resources Defense Council defended its courtroom efforts.

“These steps and safeguards serve the public interest,” said John Walke, a senior attorney with the NRDC. “They provide the public with direct opportunity to influence the scope of federal rules and safeguards. They ensure that agencies administer our laws in ways that achieve what Congress intended.”

Walke also noted the framework of suits and settlements is not new.

“The practice did not stop under the Trump administration, nor did it resume under the Biden administration,” he said. “It is a long-standing, common, and unremarkable feature of the federal courts themselves, not unique to federal agencies at all.”

There is a historical irony in that the germ of sue-and-settle tactics came under Richard Nixon when advocacy groups were warning of “agency capture,” meaning the companies that various federal agencies regulate had allegedly come to control the bureaucrats charged with crafting policy.

Thus, individual groups were given standing to file lawsuits against the federal government with the idea of empowering those groups that presumably lacked the political and lobbying muscle of big business.

On the environmental front, the policy became widespread during President Obama’s second term, when the EPA was run by Gina McCarthy, who later served as president and CEO of the National Resources Defense Council.

As McCarthy’s move from the EPA to the NRDC indicates, the players reaching the deal are generally familiar with each other. The NRDC and the Center for Biological Diversity, two litigious groups, currently have executives who previously served at the EPA or in the Obama White House in an environmental job.

It’s a tight network of federal appointees and executives of environmental advocacy groups. In addition to Regan, Lisa Garcia, the administrator for the EPA’s Region 2 covering New York, New Jersey, and other territory, was with Earthjustice after serving under McCarthy.

Matthew Tejada, a senior vice president, and Christy Goldfuss, an executive director, both held positions in the Obama administration, as did Maggie Coulter, a senior attorney at the Center for Biological Diversity.

This cross-pollination between environmental regulatory agencies and litigious groups also extends to the myriad “environmental law clinics” at law schools across the country.

Top photo by Vincent M.A. Janssen via Pexels

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