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    Sue and Settle: How the EPA Removes Power from States and Hands It to Environmental Groups

    In a report released Tuesday, the American Legislative Exchange Coucil (ALEC) sounded the alarm on the unchecked power grab by the federal government via the Environmental Protection Agency (EPA) since the beginning of President Obama's first term in 2009.

    The report reviews the EPA’s unprecedented regulatory expansion that severely curtails state sovereignty by replacing input from the states with environmental groups. This transfer of power seems like something out of Atlas Shrugged, and is accomplished by a method known as Sue and Settle. The effect of Sue and Settle is to limit input from local elected officials and allow radical environmentalists to set policy at the expense of local residents, local budgets and local control.

    The report lays out how Obama's EPA has disapproved state environmental strategies and regulations to comply with the Clean Air Act and the Clean Water act - and at a far higher rate than the past several presidential terms. In many cases, the EPA has wielded its authority to take over a state's entire plan and implement a Federal Implementation Plan, or FIP: "From 1997–2009, there were only two total FIPs imposed by the EPA. Since 2009, there have been 19."

    But the EPA, despite its massive expansion, is still the same inefficient federal bureaucracy it's always been. So instead of maintaining the control it's just wrested from a state, it brings in outside groups to write the regulations:

    Forty percent of the EPA’s regulatory takeovers, in addition to the aforementioned FIPs proposed for 33 states last February, were derivative of “sue and settle,” a legal strategy by which the agency effective­ly replaces state participation with that of environmen­talist groups like the Sierra Club. Since 2009, the EPA has imposed at least $13 billion in annual regulatory costs that resulted from sue-and-settle litigation. Sue and settle is made possible primarily by the fact that the EPA has more mandates than it can handle. The agen­cy is, for example, still implementing the 1997 National Ambient Air Quality Standard for ozone, much more than a decade after it was legally required to do so. Because the EPA’s responsibilities far exceed its resources, estab­lishing regulatory priorities is essential, and it is a decision that should be made with the states. With sue and settle, the EPA has found a way to cut states out of the process, instead negotiating the agency’s priorities with environ­mental special interests.

    Here’s how it works: An environmentalist litigation outfit like the Sierra Club sues the EPA for failing to meet a dead­line for regulatory action pursuant to the Clean Air Act or Clean Water Act. Instead of challenging the suit, both the EPA and the environmentalist groups immediately engage in friendly negotiations, which lead to a settlement that determines a deadline. By dictating how the EPA should use its limited resources, these sweetheart settlements effectively render official policy.

    As you may have already guessed, these types of settlements have skyrocketed in the Obama EPA. And far be it from the EPA to, you know, inform the states of the pending litigation. Talk about getting caught flat footed - states often end up having to play catch-up on regulations they didn't even know were pending. And when the states do become aware of pending litigation and try to have a voice in the process, the EPA has often been hostile to their involvement:

    When North Dakota Attorney General Wayne Stenehjem learned that his state was subject to FIP pursuant to an EPA settlement with WildEarth Guardians in an Oakland federal court, he tried to gain intervention into the law­suit, so that North Dakota could have a voice. The EPA opposed Stenehjem’s motion to intervene, and won a court order that kept North Dakota out of negotiations. The EPA has, unfortunately, made a practice of opposing participation by states—the regulated entities—in set­tlement discussions with environmentalist organizations. Officials from Virginia and Maryland have also tried to in­tervene in sue-and-settle negotiations that affected their states, only to be opposed in court by the EPA.

    The result is that since 2009, states have been saddled with at least $13 Billion in annual regulatory costs from Sue and Settle litigation. That's $13 Billion out of state budgets over which the states have little to no say.

    This is the kind of upside down world we live in under Obama's EPA, and it only promises to get worse in his second term.