Agencies use loopholes to avoid transparency, the author writes. | John Shinkle/POLITICO How the EPA skirts transparency

It appeared to be the dawn of a new day when, in January 2009, President Barack Obama proclaimed that his administration would be “committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation and collaboration.”

But more than four years later Americans continue to wait for the president to make good on those promises.


Instead of more sunshine on how federal bureaucracies operate, agencies like the Environmental Protection Agency have increasingly utilized regulatory loopholes to avoid transparency and pander to special interests.

One such Clinton-era tactic, known as “sue and settle,” is perhaps the most devious way in which agencies make sweeping policy changes, while keeping Congress and the American people in the dark.

Under this process, environmental groups and a federal agency agree to enter into a lawsuit that alleges that the agency has failed to meet a regulatory deadline or requirement. The two parties then settle with a preconceived consent decree that circumvents the traditional rule-making process and “forces” the agency to quickly implement mutually agreed-upon rules.

In a recently released report, the U.S. Chamber of Commerce found that EPA chose not to defend itself in lawsuits brought by special interest advocacy groups at least 60 times between 2009 and 2012. As the Chamber notes, “these settlements directly resulted in EPA agreeing to publish more than 100 new regulations, many of which impose compliance costs in the tens of millions and even billions of dollars.”

Not surprisingly, in each case, EPA settled on terms dictated by environmentalists — 34 times with the Sierra Club alone — without input or review from Congress, stakeholders or even the Office of Management and Budget. In fact, EPA does not disclose that it is even being sued until the two parties have already struck a deal and that agreement is filed in court.

Worse yet for taxpayers, the environmental groups’ lawyers are paid directly out of federal coffers.

Those fees also lack appropriate transparency. In 2012, the Government Accountability Office reported that of the 75 agencies GAO contacted, a staggering 65 did not maintain records of why or what taxpayers were forking over for frivolous lawsuits.

According to GAO, there was “no way to readily determine who made claims, the total amount each department paid or awarded in attorney fees, who received the payments or the statutes under which the cases were brought for the claims.”

But sue and settle isn’t just a boondoggle to benefit trial lawyers at the expense of the U.S. taxpayer. American families are also subjected to the consequences of policy being written by extreme environmentalists and rubber-stamped by unelected bureaucrats.

For years, environmental activists and EPA have plotted to pick winners and losers in the energy sector. Together, they have leveraged the sue-and-settle process to attack the coal industry and create a series of regulatory hurdles for coal producers and utilities that use this cheap and abundant fuel.

By suing EPA over Clean Air Act regulations, environmental groups have forced the agency (albeit a willing participant) into usurping power from the states and unilaterally requiring expensive emission controls aimed almost exclusively at coal-fired power plants. This includes the controversial Utility MACT rule and the federal takeover of regional haze programs.

Not surprisingly, the coal industry has no voice or recourse in this rule-making process. Neither do the American families who will be hit with higher electricity bills as a result of EPA’s rigged energy marketplace.

EPA is not alone in utilizing the sue-and-settle practice. According to the Chamber’s report, the U.S. Fish and Wildlife Service, Forest Service, Bureau of Land Management, National Park Service, Army Corps of Engineers, Department of Agriculture and Department of Commerce have also pursued settlements rather than fight frivolous lawsuits brought be activist groups.

Fifty-four industry groups, representing a large cross section of America’s job creators, recently shed some much-needed light on sue and settle. Now, it’s time for Congress to carry on the torch and end this practice of allowing environmental groups to write far-reaching agency rules. The American people deserve better than more broken promises.

Rep. Don Young is a Republican from Alaska.