07.24.2013 1

“Sue and Settle” and the Carbon Tax

Originally posted in the Washington Times.

By Senator David Vitter

At once, the Obama Administration has advanced the most aggressive, far-left environmental agenda ever and developed the most secretive, behind-closed-doors way of doing it.  And that’s not by accident.  Hiding its full plans from the public is essential because of their sweeping effect – lost jobs and higher energy prices.

One favorite technique the Obama crowd uses to advance its far-left agenda in relative obscurity is through “sue and settle.”  This is how it works: a far-left environmental group sues a federal department or agency, like the Environmental Protection Agency (EPA), claiming that the government is not satisfying its regulatory obligations. Then, after the group and the EPA plan and discuss the matter – without the involvement of any others, including affected business, landowners, and state and local governments – they draft a settlement agreement committing the agency to regulate a certain sector of the economy or type of private property.  All that’s left is to get the presiding judge to bless their friendly agreement.

There’s even a bonus prize in this scheme.  Because such a settlement is counted as a “win” for the environmental group plaintiff, that suing group is awarded all of its costs and attorney’s fees, creating a revolving fund for its continuing activity, courtesy of our wallets.

Presto:  the left, including the Obama Administration, advances its aggressive environmental agenda.  No need for messy Congressional hearings or opposing arguments.

During this Administration’s tenure, these friendly settlement agreements have become the norm for the environmental activist community, allowing them to force action at the agency.  Unfortunately, the resulting regulation often has large scale, negative economic impacts for states, businesses, and landowners.

Environmental groups particularly see “sue and settle” deals as a way to get the EPA moving on the specific rule-making they want. The EPA is notorious for missing statutory rulemaking deadlines on virtually everything – particularly Clean Air Act (CAA) programs.  In the last 20 years, the EPA has met CAA rulemaking deadlines just two percent of the time.  Because of this, environmental groups can pick and choose what areas to focus on, such as New Source Performance Standards and Utility MACT regulations that target coal, gaining enormous leverage and involvement in the process.

As the Obama Administration turns its attention to the recently announced Climate Action Plan, these secret “sue and settle” consent decrees will facilitate EPA and environmentalists efforts to raise energy costs.  Be on the lookout in particular for the left to try to use “sue and settle” to establish a carbon tax or its equivalent.

During a June 25 speech, President Obama laid the groundwork to implement regulations that effectively introduce a carbon tax on Americans.  Now to be clear, a tax on carbon is a tax on our energy supply.  It is an economic burden that would be clearly felt by every consumer – every American who drives to work, uses air conditioning in the summer, or heats their home in the winter.

Because a carbon tax will be a real body blow to the economy, it makes perfect sense that the Administration and its allies would prefer to do this behind closed doors.  They already know there’s zero chance Congress will pass a carbon tax.  During the Budget Resolution debate in March, Senator Sheldon Whitehouse (D-R.I.) offered a carbon tax amendment, which was soundly defeated 41 to 58 in the Democrat-led Senate.  In the House, the Republican majority has made it clear that a carbon tax is not on the table, or even in the room.

So will President Obama and his far-left allies implement this crucial part of their extreme agenda without Congressional action?

The answer is they’re trying their darndest.  And the Administration clearly has found a successful loophole with “sue and settle” that allows them to force unpopular policy on the American people without input from the public and other branches of government.

To combat this, Republicans on the Environment and Public Works Committee made “sue and settle” abuse a major issue during the recent confirmation process for the EPA administrator.  As a result, we won several concessions from the EPA, which will shed more light on the agency’s actions.  This includes requiring the EPA to publish on two websites the Notices of Intent to Sue (NOI) and Petitions for Rulemaking upon receipt. Those websites are already up and running and will give affected parties far more notice regarding what the EPA is up to.

But more work remains.  We still need a heck of a lot more transparency and accountability to make a difference in stopping the hidden far-left environmental agenda that could put our economy further in trouble.  Hard-working Americans deserve to know exactly what’s being proposed and the impacts it would have on the environment, as well as energy prices and jobs.

Senator David Vitter of Louisiana is the top-ranking Republican on the Senate Environment and Public Works Committee.

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