Op-ed on "Sue and Settle" Law Suits by Environmental Organizations

My op-ed piece on “sue and settle” law suits by environmental organization just started running in a number of newspapers.  Here’s a link to the piece in the Deseret News:

http://www.deseretnews.com/article/865592856/Tactic-ensures-EPA-ignores-politics-fulfills-its-mission.html?pg=all

It is part of a dueling set of opinions on the question: “ARE THE “SUE AND SETTLE” TACTICS USED BY ENVIRONMENTAL GROUPS WITH THE EPA A LEGITIMATE WAY OF ADVANCING “GREEN POLICIES?”

The contrary opinion is expressed here:  

http://www.deseretnews.com/article/865592857/Sue-and-settle-bypasses-democratic-process.html

So, here a few further thoughts.

First . .  oof – difficult to express the complicated nature of this issue in 600 words.  But even more difficult if the issue that one was asked to address gets recharacterized/refocused after one has written one’s piece.  (In the Deseret News, the issue was presented as “Is the EPA circumventing the legislative process?”)  Oh well, that’s the shakes.

Second, on the opposing opinion presented by William Kovacs – he presents the view articulated by the US Chamber of Commerce in their report and their views on the sue-and-settle cases. The framing of the issue by the paper (“is EPA circumventing the legislative process) ended up centering on what they wanted the public to focus on in their report.

Third, here are a couple reactions to Kovacs’ view point.  The US Chamber report, which Kovacs wrote the intro to, is a fairly one-sided advocacy study; but I suppose that should not be surprising.  One of the most disingenous parts of the study is its focus on cases brought by environmentalists and to exclude (via definition) from the scope of the study virtually all of the litigation and cases which mostly include polluters.  That might have put some of these cases into context – but again, the report was never designed to be a fair study, I suppose.  A second reaction is its disingenuous conclusion that EPA is deprived of discretion by such lawsuits when the US Chamber and polluters have made it their goal to limit the ability of EPA to do its job of protecting health and the environment.  A third, and final, reaction is that one could also draw a wholly different conclusion about the implications of “sue-and-settle” cases.  Rather than finding a remedy in making it more difficult for environmentalists to hold EPA accountable for fulfilling its Congressional mandates regarding environmental protection, how about providing the Agency with sufficient resources to do its job?

This last point is of course the ultimate rub of the US Chamber of Commerce’s report and Kovacs’ position – giving EPA the “freedom” to make what amounts to not much more than Hobson’s choices.  Ironically, interest groups like the US Chamber have also been instrumentally part of efforts to put EPA into the catch-22, by restricting the resources of EPA to do its job . . . and it is the inadequacy of regulatory resources which is the root cause of why environmental organizations are bringing these sue-and-settle cases in the first place.

Never a dull moment . . .

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