Fresh off her confirmation vote earlier this month, Attorney General Pam Bondi is wasting no time targeting potential corruption at the Department of Justice (DOJ) – including the particularly troublesome practices of third party settlements and other “sue and settle” schemes.
Sue and settle refers broadly to a legal strategy whereby advocacy groups sue a federal agency, often claiming that the agency has failed to meet a regulatory requirement. Instead of fully contesting the lawsuit, the agency quickly negotiates a settlement agreement or consent decree behind closed doors.
Consent decrees – legally binding agreements approved by a court that resolve disputes between parties – do not have the force of federal regulations or laws passed by Congress. But they do have enforceable obligations, which means signatories have to abide by the agreement.
It’s easy to see how corruption could creep into this system. Activist groups might sue the government, knowing that friendly bureaucrats won’t put up a strong defense, leading to predetermined outcomes that align with the administration’s policy agenda. Given the immense overlap in staffing between activist groups and government agencies, this concern is hardly theoretical.
Along with handing out taxpayer dollars to outside groups, sue and settle often results in new regulations or policy changes that do not go through the normal rulemaking process, which would typically require public notice, comment periods, and congressional oversight. In effect, it allows agencies to legislate from the executive branch without input from Congress or even the president.
Nowhere was this more evident under Joe Biden than when it came to the administration’s war on the oil and gas industry. In 2022, in order to settle a lawsuit brought by environmental group WildEarth, the administration closed off “4 million acres of federal land in Western states from oil and gas exploration,” according to Real Clear Investigations.
The next summer, the administration blocked “6 million acres of the energy-rich Gulf of Mexico seabed” from exploration to settle a Sierra Club lawsuit.
As Benjamin Zycher put it in an opinion piece for The Hill back in 2023, “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.”
Another form of sue and settle involves using government power to funnel money from private companies to favored nonprofits.
Take, for instance, the case of legendary instrument maker Gibson Guitars. In 2011, Gibson’s factories in Tennessee were raided by the Obama DOJ for supposedly illegally importing certain tropical hardwoods. To settle the government’s lawsuit, Gibson agreed to pay $50,000 to the National Fish and Wildlife Foundation as part of $300,000 in total fines.
As The Daily Signal reported, “members of the House Energy and Commerce Committee requested answers from the Departments of Justice and Interior, but the Obama Administration responded with no real information about the raid itself.”
In response to cases like Gibson’s, the DOJ largely banned third-party settlements and other sue and settle schemes during Trump’s first term. But Biden Attorney General Merrick Garland restored the practices, leading to big paydays for left-wing groups.
However, just hours after her swearing in, Bondi signed a directive taking square aim at third party payments.
Bondi’s memo specifically rescinds two Garland memos and prohibits settlements from “require[ing] payments to non-governmental, third-party organizations that were neither victims nor parties to the lawsuits,” except in limited circumstances. Furthermore, “Settlements, including civil settlement agreements, deferred prosecution agreements, non-prosecution agreements, and plea agreements… should be used, first and foremost, to compensate victims, redress harm, or punish and deter unlawful conduct.”
While most Americans have likely taken no note of this relatively obscure policy change, it could be a disaster moment for left-wing groups. The settlement game is big business – an Open the Books report found more than $16 million had been paid out in legal fees to attorneys representing litigants in cases against the federal government between 2013 to 2022. About half of this, $7 million, came during Biden’s presidency. (The actual number is likely higher, as the report came out in January 2024, leaving a full year remaining during Biden’s time in office.)
While Bondi is leading the way, fully stopping sue and settle will require buy-in from Trump’s other nominees and Congress.
EPA, in particular, is a favorite target of sue and settle schemes. During Trump’s first term, EPA Administrator Scott Pruitt sought to make consent decrees more transparent by holding public hearings on proposed settlements and publishing complaints and petitions for review, among other actions. New EPA Administrator Lee Zeldin could look to take similar action.
Congress could also erect guardrails around consent decrees and third-party settlements via legislation, preventing yet another see-saw back away from transparency and accountability the next time a Democrat is in the White House.
Regardless, however, Americans can be grateful that Bondi has identified the problem and begun working toward a solution.
AMAC Newsline contributor Matt Lamb is an associate editor for The College Fix. He previously worked for Students for Life of America, Students for Life Action, and Turning Point USA. He previously interned for Open the Books. His writing has also appeared in the Washington Examiner, The Federalist, LifeSiteNews, Human Life Review, Headline USA, and other outlets. The opinions expressed are his own. Follow him @mattlamb22 on X.
