EXPOSED: Return of Sue-and-Settle: State AGs, DC Swamp Preparing Biggest End-Run in History — “Green New Deal” with No Legislation, No Rulemaking Process, Just a Sweetheart Consent Decree
Activists who came up with plan now on Biden EPA transition team
As reported in the Wall Street Journal, a trail of emails between progressive state attorneys generals (AG) offices and former Obama-Biden and career Environmental Protection Agency (EPA) officials – obtained over nine months by Energy Policy Advocates’ dogged public record requests – reveal a plan to use the courts to impose the “climate” agenda early in the next administration, skipping Congress. The chosen approach is even more aggressive than the disastrous and politically unattainable “Green New Deal” (now rebranded as “Net Zero”) and was previously rejected by the Obama EPA and green activists as too extreme.
The plan is for an otherwise Obama-like move: an end-run around the democratic process, avoiding political sign-off or accountability for what would be a massive, painful and ideological restructuring of the U.S. economy.
Obfuscating by AG spokespeople notwithstanding, the hope appears to be to revive “sue-and-settle”, a practice by which green activists sue, e.g., the EPA to impose rules that the regulators wanted but couldn’t attain through regular means. “Instead of fighting the lawsuit, the EPA would then almost immediately surrender, agreeing to settle… consenting to whatever outrageous demands were being made by the agency’s handpicked ‘adversary.’” “When citizens or business complained, EPA would claim its hands were tied by the settlement.”
The progressive state AGs take the line in the Journal story that, when their political fortunes turned in Biden’s favor, they stood down on their plan to use the courts to impose a ‘climate NAAQS’ and otherwise the agenda through the courts — rather than turned to planing for a “sue and settle”.
Of course, they don’t dare file suit let alone acknowledge such a plan until a new EPA administrator is confirmed. Any other position than New York’s “we have no immediate plans to do so” would make for a very difficult process for, e.g., the rumored EPA pick, whose work they claim in emails to be following as a roadmap, Mary Nichols. As it still should.
There are other problems with this public straddle, not the least of which is that the AGs take the opposite position in court in refusing to release further records to Energy Policy Advocates: suit is pending, so we can’t release this! One wonders to whom the AGs are telling the truth, the courts, or the Wall Street Journal. Someone might ask.
Change of Plans, Transition Teams and Secrecy Pacts
After “cap-and-trade” legislation failed the Obama-Biden EPA sought to use the existing Clean Air Act to impose climate regulations, led by an individual named Joe Goffman. The Supreme Court, in West Virginia v. EPA, ended that effort, sending the climate industry back to the drawing board.
Now, after turning to Mr. Goffman for advice, AGs from California and Oregon to New York and Massachusetts developed an approach to impose what is called a National Ambient Air Quality Standard for climate, or NAAQS, under a Biden administration.
Conveniently, Goffman is now situated to finish preparations from his post on the Biden EPA transition team.
The plan requires massive central regulation of nearly all aspects of economic life – Obama’s “climate” agenda on steroids, a perpetual “Lockdown Economy”, requiring truly massive reductions in energy use emissions. Even Obama’s EPA Administrator Lisa Jackson rejected a climate NAAQS as not “advisable”. One prominent green attorney said “hell will freeze over” before that came to pass.
Goffman referred the AGs to other former EPA officials-turned-activists. Following their recommended plan, the AGs this past Spring entered agreements among themselves and Bill DeBlasio’s New York City, and with environmentalist pressure groups, declaring their work on the issue to be legally privileged to try and keep it secret from the public.
One of those groups with whom the AGs signed their secrecy pact is EarthJustice. EarthJustice’s Patrice Simms was named to lead the Biden EPA transition team.
Politically Toxic Lawsuit Held for “Sue-and-Settle”
These public records obtained from a half-dozen AG offices show the plan has been fully baked for months. It began to take shape in 2019 as a “Hail Mary” pass out of despair over a continued Trump presidency; despair soon turned into hope for an administration that would accommodate their demands by agreeing to a “consent decree” to implement the agenda.
It seems clear that the AGs withheld filing their suit with this in mind.
Former Vice President Joe Biden ran for the White House on a promise of imposing these same policies, and like his running mate, he calls climate change an “existential crisis”. A Biden-Harris administration would welcome this suit.
So would Nancy Pelosi and most congressional Democrats. The “climate” agenda is one of those bright-line distinctions that help clarify voters’ thinking. When counting votes for her return as Speaker of the House after the 2018 elections, Pelosi “was pressed on the need to shield centrist members from politically perilous votes… cit[ing] the cap-and-trade climate bill that House Democrats passed in 2009”.
Members who had been around longer than “AOC” recalled how that vote, which stirred great public opposition, played a significant role in the 2010 Republican House takeover.
Indeed, this time around only the Senate Republicans brought the “Green New Deal” up for a vote, exposing its own co-sponsors, including Sen. Kamala Harris, as afraid to go on record supporting it.
Filing this lawsuit in 2020 would not have been helpful to a certain party’s election prospects.
But under sue-and-settle, it would be so long, political and legal problems, hello long-sought, radical agenda as the Biden administration moves on to other things. Unless the public becomes sufficiently outraged over the abuse.
Absent that, politically, this is exceedingly clever, though it is a betrayal of our system of governance. Economically, it would be disastrous. If successful, the Biden administration would agree to impose a COVID-style economy, claiming as its authority the D.C. Circuit’s approval of the agreement struck between friends, and citing to an existing law that was never designed to allow such a thing which is what necessitated such a deal to begin with.
AGs Stonewall, Confess
Possibly this explains why, once public record requests by the group Energy Policy Advocates focused in on this scheme with outside activists, AG offices began forcing the group to go to court before releasing any further details. They needed to buy time.
In a September phone call in one of these lawsuits, a New Mexico assistant attorney general explained her Office’s remarkably obstinate stance on the matter by saying, “This is a very confidential issue”. While curious for being legally irrelevant, the claim is telling.
In open court in October, Washington State Assistant Attorney General Jennifer Steele, arguing to keep these records secret, informed the court that “the fact of the affirmative litigation is important here because it’s not — certainly not known to anyone.”
As late as November 12, 2020, these AGs claimed secrecy over the rest of the discussions they refuse to let the public see, on the grounds they were prepared “in anticipation of litigation”. So much for mystery.
Will They Get Away With It? Sue-and-Settle Tsunami?
This revolutionary act appears to be on its way, unless the public nip it in the bud with opposition of the kind shown to Obama’s rather less audacious “cap-and-trade” end run.
These revelations and the AGs’ fight to delay further releases also serve as a reminder that we could soon see a tsunami of sue-and-settle moves on major progressive priorities, on which there is more appetite for the agenda among the political class than for openly taking public credit — which is to say, accepting political accountability.