In a recent post, I explained how the EPA and environmental special interests entered into a collusive consent decree that would effectively require States to use air quality models to demonstrate compliance with national ambient air quality standards. Thus, unelected bureaucrats and green special interests rendered policy, in a process known as “sue and settle.”
The underlying suit, Sierra Club, et al. v. McCarthy, was filed in the United States District Court for the Northern District of California, in Oakland. This is notable insofar as the court condoned a great deal of suspect behavior.
- For example, in the course of the lawsuit, EPA and the environmental plaintiffs (Sierra Club & NRDC) litigated to oppose intervention in the legal proceedings by the States, even though the States are responsible for implementing the regulation in question. The Bay area court sided with EPA & the greens.
- Moreover, EPA, Sierra Club, and NRDC pointedly refused to allow States to participate in settlement discussions. Despite this seeming affront to the Clean Air Act’s cooperative federalism structure, the Bay area court accepted the consent decree.
- Finally, Clean Air Act “agency forcing” consent decrees are supposed to be limited solely to the establishment of agency deadlines,* as I explain in this article. The Sierra Club, et al. v. McCarthy consent decree, on the other hand, was naked policy: It mandated the use of a regulation that the agency has only proposed. In the face of this apparent procedural abuse, the Bay area court gave its imprimatur to the consent decree.
All of this brings me to the point of this post: I wonder how many courts would’ve objected to consent decree, either due to its non-participatory formulation or because of its inappropriate content?
After all, federal district court judges aren’t chosen based on merit; rather, they are nominated by the President, with consideration given to the recommendation by Senators from the State whose judicial district is at issue. They are political creatures. And, given California politics, it stands to reason that the Bay area court is one of the most “progressive” in the country.
So it makes sense that environmental special interests would want to get in this court. Alas, their primary legal tactic—the Clean Air Act deadline citizen suit (whence “sue and settle”)—allows green groups to file “agency forcing” suits in any federal district court in the country (42 U.S. Code §7604(a)). As a result, the opportunity presents itself for forum shopping, and that’s exactly what environmental litigants have done.
Recently, I crunched the numbers:
…[O]f all settlements pursuant to agency-forcing citizen suits from 1997 to 2013 affecting more than three states, 26 percent ( 12 of 46) were filed in the U.S. District Court, Northern California District, based in the Bay Area.
The U.S. Chamber of Commerce, in a wider sampling of “sue and settle” cases, found a similar bias towards the plaintiffs filing in this Bay area court:
This is something to which the Congress might direct its attention. For final EPA regulations, the Clean Air Act limits jurisdiction for judicial review to the D.C. Circuit Court of Appeals. There is, however, no such requirement for deadline citizen suits. As a result, green groups are piling into arguably the most progressive court in the country, where they are operating with EPA to push the boundaries of executive power. This is suboptimal, from a policy perspective.
*This “sue and settle” process affects policy, but it does so in an indirect fashion, by giving priority to the EPA’s limited resources.