A new lawsuit brought against the Department of the Interior last week by a series of left-wing interest groups is raising questions about the return of “sue and settle” cases as a signature feature of the Beltway swamp.
Led by the Dakota Resource Council, 10 environmental groups including the Center for Biological Diversity and the Sierra Club are suing the Interior Department, the Bureau of Land Management (BLM), and their executives to put an end to federal lease sales for oil and gas drilling on public lands. Despite an 18-month suspension in lease sales and an overhaul of the leasing program that discourages drilling, the plaintiffs allege that the federal government failed to consider the global consequences of emissions from more oil and gas extraction.
“Federal Defendants acknowledge the fundamentally incremental nature of the climate crisis and the small and shrinking window that remains to avoid the most catastrophic effects of climate change,” the legal complaint states. “Federal Defendants also admit that their Federal Oil and Gas Leasing Program contributes significantly to the global climate crisis, and that the Lease Sales at issue here will collectively cause billions of dollars in social and environmental harm to people and the planet.”
The case includes all the trademarks of a “sue and settle” suit: Friendly interest groups present a legal challenge to a federal policy with proposed changes that are endorsed by the administration, which in turn voluntarily settles and enacts the preferred policy outcome behind the cover of the courts. The allied interest groups, meanwhile, pocket a handsome payout of taxpayer dollars in the process.
Administration officials have left no room for doubt in their desire to shut down the nation’s oil and gas program, following through on a pledge from the president made repeatedly on the campaign trail to “end fossil fuels.”
“No more drilling on federal lands,” Biden said on a CNN debate stage. “No more drilling, including offshore. No ability for the oil industry to continue to drill. Period.”
Indeed, Biden ordered the suspension of lease sales for oil and gas exploration on federal lands almost immediately upon his inauguration. The suspension remained in place until a federal judge in Louisiana ordered their resumption. The Biden administration, however, has dragged its feet on new sales while pledging to resist compliance, with White House climate adviser Gina McCarthy saying on MSNBC that “President Biden remains absolutely committed to not moving forward with additional drilling on public lands.”
Gary Lawkowski, an attorney at the Dhillon Law Group who specializes in administrative law and used to serve at the Department of the Interior, told The Federalist that while it was “too soon to say definitively” the current lawsuit brought by the Dakota Resource Council fit the exact criteria of a “sue and settle” case. The filing possesses “all the hallmarks of being one that would be hard to challenge a settlement in.”
The Trump administration tried to put an end to the practice in 2018 when the Interior Department established an online database to make the details of administrative settlements publicly accessible. According to the order, the department entered into more than 460 settlement agreements and consent decrees between Jan. 1, 2012, and Jan. 19, 2017, dishing out more than $4.4 billion in taxpayer dollars, more than a third of which was paid in the final year of the Obama White House.
Last month, however, Biden Interior Secretary Deb Haaland revoked her predecessor’s order and scrubbed the administrative website that placed settlements and consent decrees in the public eye. While the department “is committed to fair, transparent, and efficient resolution of all claims brought against it,” Haaland wrote, she said the requirements under the previous order presented “limitations” that “are burdensome, duplicative, and hinder the effective resolution of complex litigation matters.”
Biden’s Environmental Protection Agency also revoked a 2017 memo from former Administrator Scott Pruitt demonizing the “sue and settle” practice as a tactic that “undermines the fundamental principles of government.”
“The days of this regulation through litigation are terminated,” Pruitt wrote, only for them to return after the 2020 election.
Pete McGinnis of the Functional Government Initiative told The Federalist that the current suit before the Department of the Interior and the BLM was a prime example of “sue and settle” back in action.
“Last month, Interior rolled back the public webpage that provided transparency on these precise types of lawsuits,” McGinnis said. “With record gas prices and administration officials in full panic attempting to show the public they are doing something about it, the timing of this suit appears to seek the exact goals of Secretary Haaland and President Biden but without having to put their name on it.”
“And they won’t even have to tell the public about their settlement if it gets to that point,” McGinnis added.