When federal agencies can’t justify an action through normal channels, they seem to invite lawsuits from environmental groups, the settlement of which allows the agency to obtain court sanctioned, negotiated settlements that bypass input from affected parties and the public.

The U.S. Chamber of Commerce notes that this tactic is most often used by the EPA and U.S. Fish & Wildlife Service and somewhat less often by U.S. Forest Service, the Bureau of Land Management, the National Park Service, the Army Corps of Engineers, the U.S. Department of Agriculture, and the U.S. Department of Commerce.  The Sierra Club is the most often used partner in this scam, closely followed by the WildEarth Guardians, the Natural Resources Defense Council, and the Center for Biological Diversity.

This “sue and settle” tactic is made possible due to the structure of environmental laws which not only get the Feds what they want, but also enriches environmental groups while at the same time hindering the legitimate function of the government agency.  For instance, the Endangered Species Act is used as a money generator for such groups.  The structure of the law makes it easy for environmental groups to game the system.  According  to attorney Karen Budd-Falen, “Species are listed by a petition process, which means that anyone can send a letter to the federal government asking that a species, either plant or animal, be put on the ESA list. The federal government has 90 days to respond to that petition, no matter how frivolous. If the federal government fails to respond in 90 days, the petitioner – in the vast majority of cases, radical environmental groups – can file litigation against the federal government and get its attorneys fees paid. The simple act of filing litigation does not mean the species will get listed or that it is warranted to be protected; this litigation is only over whether the federal government failed to respond to the petition in 90 days.  Between 2000 and 2009, in just 12 states and the District of Columbia, 14 environmental groups filed 180 federal court complaints to get species listed under the ESA and were paid $11,743,287 in attorneys fees and costs.”  The burden of responding to the many lawsuits causes government biologists to spend much less time on conservation work.

The U.S. Chamber of Commerce opines that “As a result of the sue and settle process, the agency intentionally transforms itself from an independent actor that has discretion to perform its duties in a manner best serving the public interest into an actor subservient to the binding terms of settlement agreements, which includes using congressionally appropriated funds to achieve the demands of specific outside groups. This process also allows agencies to avoid the normal protections built into the rulemaking process, review by the Office of Management and Budget and the public, and compliance with executive orders, at the critical moment when the agency’s new obligation is created.”

A major concern is that the sue and settle tactic, which has been so effective in removing control over the rulemaking process from Congress, and placing it instead with private parties under the supervision of federal courts, will spread to other complex statutes that have statutorily imposed dates for issuing regulations, such as Dodd-Frank or Obamacare.

The Chamber says that it is important to fix this culture of “sue and settle” because: “Congress’s ability to act on or undertake oversight of the executive branch is diminished and perhaps eliminated through the private agreements between agencies and private parties. Rulemaking in secret, a process that Congress abandoned 65 years ago when it passed the Administrative Procedure Act, is dangerous because it allows private parties and willing agencies to set national policy out of the light of public scrutiny and the procedural safeguards of the Administrative Procedure Act.”

Read the full report from the U.S. Chamber of Commerce here.

If a company or individual violates either the Migratory Bird Treaty Act or the Eagle Protection Act, they could get fined up to $250,000 or get two years imprisonment per incident.  This is, unless they run a wind turbine installation, an industry which collectively kills thousands of birds and bats each year.

Not a single wind farm operator has yet been prosecuted for killing birds, yet in 2009 ExxonMobil was fined $600,000 for killing 85 common ducks and other birds that flew into uncovered tanks on its property.  “BP oil company was fined $100 million for killing and harming migratory birds during the 2010 Gulf oil spill. And PacifiCorp, which operates coal plants in Wyoming, paid more than $10.5 million in 2009 for electrocuting 232 eagles along power lines and at its substations,” according to the AP.

Ron Arnold, of the Center for the Defense of Free Enterprise, quoting a study by Teresa Platt of the National Center for Public Policy Research, notes that “‘Every year since the 1980s the 5,000 turbines at NextEra’s Altamont Pass in California kill thousands of slow-reproducing red-tailed hawks, burrowing owls, kestrels, as well as iconic golden eagles, and bats.’” The birds Platt mentions are raptors – birds of prey – particularly valued for their agricultural role in killing mice and other crop-damaging rodents. Eagles, both golden eagles and bald eagles, have long impressed Americans for their majesty, and the bald eagle was selected by our Founding Fathers as our national emblem.”  See Arnold’s report here.

The American Bird Conservancy says that Altamont alone has killed more than 2,000 golden eagles.  The U.S. Fish and Wildlife Service hedges its annual windmill bird death estimates at between 100,000 to 444,000 dead birds in the U.S.

An article from the Associated Press notes “the administration has never fined or prosecuted a wind-energy company, even those that flout the law repeatedly. Instead, the government is shielding the industry from liability and helping keep the scope of the deaths secret.”  “The result is a green industry that’s allowed to do not-so-green things. It kills protected species with impunity and conceals the environmental consequences of sprawling wind farms.”   “Nearly all the birds being killed are protected under federal environmental laws, which prosecutors have used to generate tens of millions of dollars in fines and settlements from businesses, including oil and gas companies, over the past five years.”

The failure to enforce the law evenly for all energy producers clearly shows that the Obama administration has a double standard when it comes to his much touted “green energy” projects.

See also:

Wind turbines versus wildlife

Obama scandals dominating the news about how the administration failed our Libyan delegation at Benghazi, about how the IRS targeted conservative groups, and about administration spying on the Associated Press, now have another contender.

It seems that the Environmental Protection Agency has been giving preferred treatment to environmental groups while denying similar treatment to watchdog groups.

More on the story may be read at the Washington Examiner here and at the Competitive Enterprise Institute (CEI) here.

CEI: “Public records produced by EPA in response to a lawsuit filed by CEI under the Freedom of Information Act illustrate a pattern of making it far more difficult for limited-government groups – in particular those who argue for more freedom and less EPA – to access public records.”

Examiner: “For 92 percent of requests from green groups, the EPA cooperated by waiving fees for the information. Those requests came from the Natural Resources Defense Council, EarthJustice, Public Employees for Environmental Responsibility, The Waterkeeper Alliance, Greenpeace, Southern Environmental Law Center and the Center for Biological Diversity. CEI, on the other hand, had its requests denied 93 percent of the time.”

CEI: “This demonstrates a clear pattern of favoritism for allied groups and a concerted campaign to make life more difficult for those deemed unfriendly. The left hand of big government reaches out to its far-left hand at every turn. Argue against more of the same, however, and prepare to be treated as if you have fewer rights.”

See also:

How NEPA crushes productivity

The EPA is destroying America

EPA sued in federal court over illegal human testing