Suppose you’re part of a special interest group. You’re the president of the “Save The Gurgenschimer’s Banded Earthworm Foundation.” It’s a small group with little real influence, but its members are ardent greenies. An energy company wants to build a new, modular nuclear reactor on a midwestern site. It’s far from any population center and America certainly needs more electric generation capacity, but like all good greenies, you want to stop all such development by greedy, evil spoilers of the planet, and mirable dictu—wonderful to tell—there just happen to be Gurgenschimer’s Banded Earthworms on the proposed site! OK, so one of your members planted one and dug it up with the media present, filming it in glorious, wormy color, but when saving the planet is the end, any means are fair.

The Foundation is on its last legs. For some unfathomable reason, the American public doesn’t much care about the fate of the noble Gurgenschimer’s Banded Earthworm.  Donations have dried up.  Your grant to study transgenderism among the worms from the last Democrat administration has run out. But that worm provides a glimmer of hope.

You have a contact at the EPA, and that contact has a contact at the BLM, and you all agree the nuclear reactor would be a bad thing and preserving the absolutely vital Gurgenschimer’s Banded Earthworm must be a priority, but the president is a Republican and he’d torpedo your efforts and Congress doesn’t care about the worms, because what’s in it for them? The EPA and BLM could gin up some regulations and rule-making, but that would involve years and mandatory public comments, and the kind of public exposure no one wants. What to do? 

Sue and settle! 

Graphic: openthebooks.com

"Sue and settle” describes cases wherein a party (often an environmental nonprofit or other advocacy group) sues a federal agency, and instead of litigating the lawsuit in court, both parties come to terms via negotiation. Such settlements—or “consent decrees”—may include issuing or determining aspects of a rule or meeting a specific deadline.

While settlements are an important tool for administrators to avoid lengthy and expensive litigation, critics say the practice can create new regulations without a public policy debate and increases federal influence over state laws.

And critics are right.

Your BLM contact knows a sue and settle specialist at the DOJ, who has a contact in a public interest law firm that would be delighted to sue the government to get the kinds of regulations and rules that would stop the nukes, preserve the worms that don’t actually live there—SHHHHHHH!---and save the planet. That the lawyers would get a huge payday is beside the point—OK, it’s most of the point. Greenie virtue signaling is always the point too, and this will get a lot of positive press for the Foundation, which means donations and grants. Government loves these end runs around the law and public:

Sue and settle cases soared during the Obama Administration. The EPA entered 77 consent decrees regarding the Clean Air Act during Obama’s second term, compared to 28 during the second term of George W. Bush, according to the Chamber of Commerce.

In 2017 then-EPA Administrator Scott Pruitt published a directive ending the use of consent decrees and settlement agreements as a means to “circumvent the regulatory process set forth by Congress.” Most of the provisions outlined by Pruitt’s directive were later rescinded by Biden EPA Administrator Michael Regan in 2022.

Taxpayers paid nearly six million to sue to settle lawyers during Obama’s second term, and just spare change under seven million in Biden’s first two years alone.  During Trump’s first term?  Less than half that.

Graphic: openthebooks.com

Sue and Settle is a great scam for lawyers and greenie luddites in government and the private sector determined to return the world to a pristine, pre-industrial state. For people who want reliable electricity, indoor plumbing, heat in the winter and air conditioning in the summer, not so much.

 Since it’s all done out of public view, there’s no way to know just how much the lawyers involved are over-charging for their vital, planet-saving services, and there has been no audit of the EPA, or of this particular scam, for well more than a decade.

Compared to some wastes of taxpayer dollars, this is a pocket change scam, but it’s ripe for the attention of DOGE, and it appears Trump could end the practice with an executive order. He’d need to appoint someone to ride herd on the EPA and the rest to ensure his order was followed, but there must be an honest person or two in that agency, right?  Right?

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Mike McDaniel is a USAF veteran, classically trained musician, Japanese and European fencer, life-long athlete, firearm instructor, retired police officer and high school and college English teacher. He is a published author and blogger. His home blog is Stately McDaniel Manor.