When the Biden administration announced in 2022 that it would remove some 4 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.
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 immigrants 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 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 government to advance policy goals that cannot be achieved through normal democratic channels.
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.
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 President 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, according to 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,” he said. “The problem is when there is footsie going on between an agency of the Department of Justice and the nongovernmental 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 District of Columbia 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, 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 President Biden’s BLM settled the case, in effect giving the groups what they wanted.
“In other words, the BLM just agrees to do what the plaintiffs wanted.”
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.
The EPA disputed the characterization that it has radically changed course under President Biden. While it acknowledged Mr. Regan’s “litigation transparency memorandum revoked and replaced” Mr. Pruitt’s October 2017 memo, an EPA spokesperson insisted that the agency “has not discontinued or rolled back ... 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.
But the EPA did not respond to RealClearInvestigations’ (RCI) 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 it remains uncertain.
“There’s lawsuits sometimes we don’t know about and there are just so many cases where you would want or need to intervene,” Ms. Sgamma said.
“These steps and safeguards serve the public interest,” John Walke, a senior attorney with the NRDC, said. “They provide the public 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.”
The framework of suits and settlements is not new, he said.
“The practice did not stop under the Trump administration, nor did it resume under the Biden administration,” Mr. Walke 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 that 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 NRDC president and CEO.
As Ms. McCarthy’s move from the EPA to the NRDC indicates, the players reaching the deal are generally familiar to 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 Mr. Regan, Lisa Garcia, administrator for the EPA’s Region 2 covering New York, New Jersey, and other territory, was with EarthJustice after serving under Ms. 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 the litigious groups also extends to the myriad “environmental law clinics” at law schools across the country.
“Usually, the federal government vigorously defends itself against lawsuits challenging its actions. But not always,” attorney Andrew Grossman, a partner with BakerHostetler, testified to the House Subcommittee on the Constitution and Limited Government. “Sometimes regulators are only too happy to face collusive lawsuits by friendly ‘foes’ aimed at compelling government action that would otherwise be difficult or impossible to achieve.”
Whether blindsided by regulations that the market never saw coming, or handcuffed by the blanket of inactivity a consent decree may throw over an area, the practice of sue-and-settle is a pernicious one, according to its critics.
“The whole thing is bypassing democracy because the litigation delegates power to outside groups,” Walter Olson, a conservative legal scholar at the Cato Institute, said. “Because the consent decrees can set the future course of how agencies do business, it means that behind closed doors they are tying the hands of future voters and administrators. That’s not at all how it’s supposed to be.”
In addition, the very nature of the deals, struck between two sides firmly committed to the idea that the economy should be pushed toward net zero emissions, reflects what is happening, according to critics. Given that plaintiffs and defendants share the same outlook on global warming and would like to put vast areas off-limits to oil and gas exploration, it is no surprise that is exactly what the settlements accomplish, Ms. Sgamma said.
Some believe legislation could reign in global warming lawfare, while empowering voters and taxpayers. House Republicans held at least two hearings on the tactic in 2023, the most recent in December 2023—although critics note that the issue has been a political football at least since the Reagan administration.
Despite congressional debate in the House, lawmakers proved reticent about discussing possible solutions to sue and settle. RCI reached out to all of the Republicans and some Democrats on the committees who heard testimony about the matter last year, and Rep. Bob Good (R-Va.) was the only representative to respond.
“The Obama administration often bypassed Congress, using sue-and-settle tactics to accomplish what they could not via the legislative process,” Mr. Good said. “Biden is continuing that unconstitutional legacy and weaponizing the government against the people.”
Similarly, the members of both the American Energy Alliance and the Western Energy Alliance are skittish about angering regulatory agencies and thus declined to discuss the matter.
“The way to solve this is by bringing more people and transparency into the process,” Mr. Tryon said. “Now, it’s impossible to follow all the lawsuits, and we don’t even know all the things that are happening. With more openness, it could be monitored more closely because now people who are afflicted by these settlements have no voice.”
