The EPA gives millions to the environmental groups that sue it. “When the EPA settles or loses those suits, it then awards the groups millions more in attorneys’ fees,” notes legal commentator Walter Olson. “‘The EPA isn’t harmed by these suits,’ said Jeffrey Holmstead, who was an EPA official during the Bush administration. ‘Often the suits involve things the EPA wants to do anyway. By inviting a lawsuit and then signing a consent decree, the agency gets legal cover from political heat.’ Holmstead called this kind of litigation ‘sweetheart suits.'”
The EPA gave millions to groups that sued it to get it to regulate greenhouse gases, like the Environmental Defense Fund and Natural Resources Defense Council. Those groups brought a lawsuit that led to the Supreme Court’s 5-to-4 decision in Massachusetts v. EPA (2007), which vastly expanded the EPA’s jurisdiction. More recently, they sued to compel the EPA to issue greenhouse gas “performance standards” for power plants and refineries. In a recent settlement, the EPA agreed to do just that. Critics “said the costly settlement was ‘concocted in secret’” and that other lawsuits by EPA grantees resulted in collusive settlements that cost the economy billions, increased the EPA’s powers, and gave environmental groups things that they were unlikely to win in any court ruling.
Government funding is one of many reasons that these environmental groups have a huge financial advantage in the political process. For example, an American University study found that supporters of the cap-and-trade bill aimed at global warming had a massive financial edge over their critics. American University’s Professor Nisbet notes that “the effort by environmentalists to pass cap and trade may have been the best financed political cause in history.” It nonetheless has failed thus far, perhaps because of the enormous cost and waste associated with the bill. (In 2008, Obama said that “electricity rates would necessarily skyrocket” under the cap-and-trade plan he favored, and that it would “bankrupt” coal-fired power plants. The cap-and-trade bill is chock full of costly corporate welfare, and would have a “trivially small” effect on greenhouse gas emissions while imposing an enormous cost, according to a former Obama Advisor. It is supported by the same special-interests and corporate rent-seekers who supported the stimulus package’s green-jobs provisions, which used tax dollars to outsource American jobs, subsidizing foreign “green jobs” that replaced thousands of American jobs. Recent EPA rules will wipe out at least 800,000 jobs. Two economists say the stimulus destroyed 550,000 jobs.)
As Walter Olson notes, collusive lawsuits are not unique to the EPA, nor are incestuous relationships between agencies and liberal lobbying groups. In his book, Schools for Misrule, he chronicles how “other government agencies, much like the EPA, use settlements of pressure-group lawsuits as a way to go along with desired expansions of power.” For example, “corrections and foster-care systems commit to step up program offerings and . . . seek higher funding to accomplish their missions; union-allied public-sector managers give away the store on employee benefits disputes, and so forth (scroll to “Consent of the Governors”). From New York to Alabama, state education departments have covertly or even openly assisted lawsuits against themselves intended to force spending expansion. And once sweetheart negotiations result in an adverse consent decree . . . the locked-in big-government policies can be nearly impossible to unlock later on, should voters’ moods change.”
Nor is the EPA’s willingness to fork over millions in fees in collusive settlements unusual for agencies in the Obama Administration. Other agencies in the Obama Administration frequently settle lawsuits brought by liberal groups by giving them everything they ask for, even when the liberal group was virtually certain to lose its lawsuit against the government. The Obama Administration frequently agrees to pay attorneys fees to trial lawyers even when such fees are barred by provisions in the Equal Access to Justice Act. That law, which governs the award of attorneys fees in many lawsuits against the EPA, protects the government from having to pay fees even when it loses a lawsuit, as long as its position was not frivolous but rather was “substantially justified.”