by Mitch Kokai
Senior Political Analyst, John Locke Foundation
In a new book about Eric Holder’s U.S. Justice Department, authors John Fund and Hans von Spakovsky describe various schemes designed to avoid constitutional limitations on government action. David French details one of them in a book review for the latest print edition of National Review. It involves DOJ’s Environment and Natural Resources Division.
An independent judiciary can theoretically act as a check on the ENRD’s zeal, but what if the game is rigged? One of the book’s most disturbing sections demonstrates how the ENRD actively cooperates with outside advocacy groups to transform environmental law — and also enrich the outside groups with millions of dollars in taxpayer-funded legal fees.
Here’s how the scheme works: Unwilling or unable to work through Congress or the conventional regulatory process to pass new environmental laws, a radical environmentalist group (like, say, Earthjustice, the former employer of a past head of ENRD) files a lawsuit seeking a court order enforcing an entirely new environmental standard. The DOJ, rather than vigorously defending existing law, chooses to surrender and then cooperates with the outside activist group in crafting an agreed settlement that binds the government to new environmental standards. In at least 60 cases between 2009 and 2012, the DOJ, in cooperation with the EPA, chose not to defend against environmentalists’ claims, agreeing instead to settle the lawsuits by signing “consent decrees” that essentially function as new environmental regulations.
This “sue and settle” practice resulted, Fund and von Spakovsky report, in “more than 100 new federal rules, many of which are major rules with estimated compliance costs of more than $100 million annually.” And, because the DOJ and the EPA “lost” the cases (by refusing to mount a defense against the lawsuits), the radical environmental group is entitled to a substantial attorneys’-fee award.