Newsline , Society

Biden Administration Continues Its Anti-Democratic “Sue-and-Settle” Masquerade

Posted on Friday, September 15, 2023
by Outside Contributor
President Joe Biden sitting at desk with American flag discussing Sue-And-Settle
President Joe Biden participates in a virtual meeting of the Major Economies Forum on Energy and Climate.

They now make no efforts even to be subtle.

“They” are the Biden administration agencies that regulate leasing for energy exploration in federal lands and waters, and leftist environmental groups driven by ideological imperatives.

These agencies, deeply politicized, have cut deals with the ideological groups, and nobody was at the table to represent the taxpayers’ interests. The groups themselves, meanwhile, seem to have little interest in actual environmental improvement, but an overwhelming interest in using regulation to make energy more expensive and reduce ordinary people’s living standards.

The latest example is the recent sue-and-settle dance between groups led by the Sierra Club and the National Marine Fisheries Service, in which the feds agreed to remove 6 million acres in the Gulf of Mexico from future oil and gas leasing. This is purportedly being done to protect the Rice’s whale.

In addition, the Bureau of Ocean Energy Management (of the Department of the Interior) — even though it was not a party to the case  — announced a “voluntary” set of “recommendations” and “guidance” for vessels engaged in existing fossil energy activities “within the Expanded Rice’s Whale Area (ERWA),” based on “one recent study.”

The recommendations include a speed limit of 10 knots, avoidance of transit through the ERWA during non-daylight hours and maintenance of a minimum of 500 meters of separation from Rice’s whales or any whales that cannot be confirmed as a species other than a Rice’s whale.

Where to begin? The BOEM description of its recommendations as voluntary guidance for existing oil and gas operations is a lot of hooey. Any fossil energy operations vessel harming a Rice’s whale in the ERWA while not adhering to the “recommendations” will likely be subject to the penalties specified in the Endangered Species Act of 1973. Moreover, the recommendations will be mandatory for operations beginning with lease sale 261, scheduled for Sept. 27.

The justification for the restrictions — protection of the endangered Rice’s whale — also is hooey, as the restrictions do not apply to the thousands of vessels engaged daily in fishing, construction of offshore wind energy facilities, or other activities not related to fossil energy operations. In BOEM’s view, then, it is unacceptable for an oil tanker to cause the death of a Rice’s whale, but if another vessel kills it then it’s just the cost of doing business.

So why is BOEM using this legal settlement to exclude significant amounts of additional acreage? One might argue that BOEM has no authority over such other vessels; but then why has the Biden administration not proposed that Congress impose such restrictions on all vessels operating in the ERWA? Are the Rice’s whales lives not worth it?

The obvious answer is that any such proposal would interfere with the nostrums about offshore wind heavily promoted by the administration, while also creating serious political problems with the other many industries and interests benefiting from the operation of vessels in the ERWA. So much for the protection of the Rice’s whale.

Other than the claims asserted in the “one recent study” cited by BOEM, what evidence supports the hypothesis that Rice’s whales are observed in the ERWA at all? The BOEM answer is that “the possibility of incidental take of Rice’s whale in the [ERWA] cannot be dismissed at this time,” a stance very different from an actual finding that such collisions are likely to occur. That kind of finding would have to be justified in a formal rulemaking subject to public notice and comment, an exercise in actual cost-benefit analysis that this sue-and-settle racket is designed explicitly to circumvent.

Sue-and-settle in general is an obvious end-run around Congress’s authority to enact policies, and the limitation on administrative agencies to implement only those policies that Congress has approved. It is therefore a collusive arrangement between ideological interest groups and federal bureaucracies. Such collusion affects interstate commerce significantly, and there is no reason in principle that it would be limited to the fossil energy sector. All sectors — agriculture, pharmaceuticals, defense industries, ad infinitum — are vulnerable to such tactics driven ideologically without congressional authorization.

Sue-and-settle, therefore, is a threat to democracy and to all industries and businesses, and should be opposed by all of them. It circumvents Congress’s power to enact policies through legislation. And because it involves the willing participation of the regulatory agencies themselves, it is unconstitutional. It is insulated from political accountability and therefore is fundamentally authoritarian.

Congress must preserve its legislative powers by taking steps now to end it.

Benjamin Zycher is a senior fellow at the American Enterprise Institute (AEI), where he works on energy and environmental policy.

Reprinted with Permission from – By Benjamin Zycher

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7 days ago

Sue-and-settle is used by virtually all socialist countries as a means of crushing companies and sectors of the economy that are out of favor with the regimes in power. All so the government can run the economy and impose its policies on the country in question. It is an avenue where the house (in this case the government) controls all the variables in the case and the result is a foregone conclusion. The government, after all, controls almost all the moving pieces in this scheme and they have virtually unlimited time and money to devote to the task. The conclusion ends up being the targeted company or sector of the economy suffers large financial damages, in the form of huge legal bills, loss of revenue due to new government restrictions imposed, as well as potential fines on top of everything else that the government imposes to make an example of someone.

The financial impact of course doesn’t stop with the targeted companies or economic sectors targeted. As the effects ripple down to the consumer in some form of either less access to a particular product or service or higher costs for that product or service. The winner of course is the government that extends its reach and power further into the private sector and thus is in the position of picking “winners” and “losers”. Of course, in this scenario, the American public will always be in the “losers” column, as they bare the additional costs and suffer the loss of access to the goods or service. Again, this is how it works in every socialist country I have ever visited over the decades or read about. Today, the United States is a socialist nation in all but name. It is amazing how little time it took for the left to complete the final phase of their desired “transformation” of the United States.

As for the author’s call for Congress to step up and assert some legislative means to reign in the Executive Branch’s use of this tactic, that call will go nowhere. Half the Congress fully supports all the tenets of socialism (the Democrats and even some RINOs), and the other half largely operates by wanting to simply “go along to get along” to preserve the status quo of D.C.. Sure, we have the House Freedom Caucus, that would be more than happy to support this sort of legislative change, but they number only about 20 members of the House. So the prospect for getting this sort of legislative change actually passed through both chambers of Congress is zero. Biden wouldn’t even have to veto anything, as no such congressional legislation would arrive on his desk.

7 days ago

LIES, LIES and MORE LIES from our Communist wannabe President. Yet even the dumbest Democrats are realizing that the Price of Gasoline has Doubled since Trump was President along with food, utilities, housing and almost everything retail! But Jackass Joe Biden is STILL trying to BLAME Trump especially since the Mainstream Media WON’T call him out for it! But this time, it’s NOT going to work! Even the PHONY Indictment of Trump while the Mainstream Media tryst to ignore BIDEN’S TREASON while enriching his own pockets. The House Republicans won’t succeed with Impeachment as long as the Democrats control the Senate but at least BIDEN’S TREASON will be EXPOSED!

David Millikan
David Millikan
6 days ago

If Dictator Beijing biden wants to Sue and Settle then he can start with the Food Supply by NOT being FULL SIZE SERVINGS. We are getting about 30% to MAYBE 70% of ACTUAL food at the Grocery Stores at MORE than DOUBLE to TRIPLE or MORE for PRICES we pay.
I just grabbed an Overpriced Microwave Dinner for lunch and it had MAYBE 25% of ACTUAL MEAT from what the picture on the box showed.
Thanks to Dictator Beijing biden’s INFLATION and DESTROYING 10 FOOD PROCESSING PLANTS by FIRES in his first year in office ILLEGALLY and UNCONSTITUTIONALLY.
WHERE ARE THE FULL PORTIONS OF FOOD WE HAD WHEN PRESIDENT TRUMP WAS IN OFFICE? Forgot, they were taken away by Dictator Beijing biden.
To this day he has done NOTHING about it except take vacations and continue SELLING OUT THE UNITED STATES of AMERICA.
That’s democrats for you.

Theresa Coughlin
Theresa Coughlin
6 days ago

sue-and-settle sounds like legalized extortion to me.

5 days ago

“Sue and Settle” has become the most potent weapon of the Marxist Democrat Party, in ALL aspects of the federal government. It is nothing more than defrauding the American taxpayers to purchase favor from presumed NGOs. It is money laundering ping pong, pure and simple.

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