Dec 16th, 2014 by Larry Bell
Revolving-door employment exchanges between private lobbies and government facilitate these incestuous collaborations. An important tactic involves use of wink-and-nod lawsuits whereby environmental lobbying entities are secretly encouraged to sue the agency for remedies desired by both sides, then quietly settle out of court.
Although such practices are not new or limited to a single federal agency, those involving EPA are nevertheless very much on the rise. Many target fossil fuel industries, coal in particular, commonly applying ever-expanding rule-making claims premised under authority of its Clean Air Act. Two major inside players are the Natural Resources Defense Council (NRDC) and the Sierra Club.
Two watchdog organizations, the Energy and Environmental Legal Institute (E&E Legal) and Free Market Environmental Law Clinic (FMELC) recently sent a letter to EPA Inspector General Arthur Elkins requesting an investigation into collusive deals whereby the agency allowed the NRDC and Sierra Club to help write regulatory policy for its war on coal. E&E Legal and FMELC have pieced together evidence taken from hundreds of e-mails obtained under the Freedom of Information Act (FOIA).
The New York Times reports that NRDC is also the subject of an ongoing congressional inquiry based upon other e-mails indicating that EPA has stocked its senior positions with politically appointed officials from various green groups. This arrangement afforded those groups unprecedented access to former colleagues — leading to unlawful influence toward shared ends to the detriment of due process constitutional rights of other parties.
E&E Legal’s attorney Chris Horner commented, “EPA’s hostility toward transparency is now well established.” As of now, EPA uses every tool at its disposal to delay FOIA responses. Accordingly, Horner observes that “The Inspector General even recently sent letters to Congress complaining that EPA bureaucrats were obstructing his investigations" . . . and evidence shows that “EPA’s Inspector General must now pursue conflicts of interest and collusion and how they influenced EPA’s most controversial and expensive regulatory agenda ever.”
E-mail exchanges between former EPA head Lisa Jackson and NRDC’s Frances Beinecke reveal the organization’s long and powerful influence, provoking the House Oversight and Government Reform Committee to investigate what lawyers and economists refer to as “regulatory capture”. This is a cozy relationship where a regulatory agency becomes so beholden to special interests it no longer acts in the interests of the rest of us.
As reported by the Daily Caller’s Michael Bastasch, House Oversight and Government Reform Committee Chairman Darrell Isa wrote to EPA Administrator Gina McCarthy and NRDC President Beinecke stating “It appears that NDRC’s unprecedented access to high-level EPA officials allowed it to influence EPA policy decisions and achieve its own private agenda.”
The letter went on to say, “Such collusive activities provide the NRDC, and their financial backers, with [an] inappropriate opportunity to wield the broad powers of the executive branch.”
New York Times climate and energy writer Coral Davenport reported that NRDC lobbyists David Doniger, David Hawkins and Daniel Lashof crafted the EPA plan “aimed at slashing planet-warming carbon pollution from the nation’s coal-fired power plants”. This, she believes, served as the inspiration, if not the blueprint, for EPA’s new rules.
The sue-and-settle approach, sometimes referred to as “friendly lawsuits”, or “regulation through litigation”, obtains consent decrees from cherry-picked courts based upon prearranged settlement agreements — collaboratively crafted together behind closed doors.
Then, rather than allowing the entire process to play out, the agency being sued settles the lawsuit by agreeing to move forward with the requested action they and the litigants both want. More than 60 such EPA agreements have been reached with NRDC and other environmental groups in just the past four years with little or no congressional input or oversight.
While the environmental group is given a seat at the table, outsiders who are most impacted are excluded, with no opportunity to object to the settlements. No public notice about the settlement is released until the agreement is filed in court — after the damage has been done. On top of all that, generous government taxpayers typically pay the legal fees of both colluding parties.
No responsible person wants polluted land, air and water. While government has important roles to ensure responsible environmental safeguards, protections are also needed to ensure responsible and accountable regulatory processes.
This will not occur as long as unelected bureaucrats in concert with ideological zealots and special interest cronies are free to craft and impose back-door regulatory rulings with sweeping impacts upon the rest of us.
Larry Bell is an endowed professor of space architecture at the University of Houston where he founded the Sasakawa International Center for Space Architecture (SICSA) and the graduate program in space architecture. He is author of “Climate of Corruption: Politics and Power Behind the Global Warming Hoax,” and his professional aerospace work has been featured on the History Channel and the Discovery Channel-Canada.