'Sue and settle' tensions flare at House hearing
Environment & Energy Daily by Dylan Brown, May 20, 2015
The Obama administration's lead environmental lawyer yesterday faced accusations at a Capitol Hill hearing that outside groups are shaping federal agency policy through settlements that pre-empt lawsuits. Assistant Attorney General John Cruden, who heads the Department of Justice's Environment and Natural Resources Division (ENRD), dismissed the criticism at a hearing of the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law.
The Cato Institute's Andrew Grossman, a frequent congressional adviser and media commentator, cited a pair of recent legal opinions in accusing ENRD of deferring to agencies that seek settlements with environmental groups to avoid litigation -- a practice lambasted by industry and business groups. Fixing his attention on U.S. EPA, Grossman said ENRD's failure to challenge the merits of lawsuits when other agencies go to court in similar circumstances produces at least "a whiff of collusion." With a "revolving door" between EPA and environmental groups, Grossman said, environmentalists are able to dictate government policy through "sue and settle" lawsuits that bypass congressional oversight."These litigation lapses likely reflect EPA's political views," he said. He said Congress should demand answers to questions of transparency and accountability because citizen-sue provisions are being abused to coerce agency action. "Even if these reforms aren't signed by the current president, they should be ready now for the possibility for the next administration may have an appetite for serious regulatory reform," he said. He rejected recent pushback to proposed legislation taking on "sue and settle" lawsuits in both chambers of Congress -- H.R. 712 and S. 378 (Greenwire, Feb. 5).
"The proof is in the pudding," he said. "Special interests wouldn't bring lawsuits destined for settlement if it didn't work. Unfortunately, it does." He noted the landmark settlement between environmental groups and the Fish and Wildlife Service that required the agency to determine whether or not 251 species should be listed as endangered within six years (E&ENews PM, Sept. 9, 2011).
"The problem will only get worse in the waning days of the Obama presidency. At this point, agency officials have every incentive to sign settlements to help them rush rules out the door in an attempt to bind [the next administration," he said. After more than two decades working at ENRD, Cruden blasted Grossman's claims, pointing out the Justice Department prevailed in both court decisions cited. "I believe he was commenting on a standing issue in two cases and that kind of overlooks the hundreds of times that the Environmental Division actually brings standing to the attention of the court and vigorously litigates that issue," Cruden said. Cruden, whom the Senate confirmed in January, said his division is not acquiescing to external pressure. "I have not seen a collusive lawsuit; I would not accept a collusive lawsuit," he said. "We will not do anything like that during my tenure as assistant attorney general."
According to Cruden, the division is doing its job, which is to communicate with the agencies it represents and present the best legal position. "Our standards are very clear: If a consent decree is going to be better for us than litigating the case to conclusion, we should do that," he said. He said consent decrees can actually be good for the groups that often criticize them. Not only do they save on attorneys' fees, but a power plant operator or manufacturer does not have to admit liability and can just skip to remediating the damage, Cruden said. "Consent decrees not only get communities involved," he said, "they get the public involved, but they also clean up the mess that was made."