The Sue-and-Settle Racket

COMMENTARY Environment

The Sue-and-Settle Racket

Mar 20, 2014 3 min read
Stephen Moore

Senior Visiting Fellow, Economics

Stephen Moore is a Senior Visiting Fellow in Economics at The Heritage Foundation.

For four years now, radical environmental groups have teamed with the Obama administration’s Interior Department and hijacked the Endangered Species Act (ESA) to bottle up development in many areas out West. The big villain that the Left is trying to thwart, of course, is the oil-and-gas industry. The ESA is blocking drilling operations in many prime energy-rich locations.


But now this scam may come to an end. On Monday Oklahoma’s attorney general, Scott Pruitt, filed what could be a landmark lawsuit against the U.S. Fish and Wildlife Service (FWS), arguing that the so-called “sue and settle” procedure for listing animals on the endangered list is a violation of the federal ESA statute. In the complaint, filed on behalf of the State of Oklahoma, Mr. Pruitt charges that “by entering into private settlements with special interest litigants, FWS has attempted to circumvent the legislative and regulatory process and make fundamental changes to its ESA-imposed obligations.”

The State of Oklahoma and energy companies are seeking “injunctive relief” that would overturn the designation of up to several hundred species that have been added to the threatened or endangered list through the “sue and settle” process. Under sue and settle, left-wing environmental groups, including the Center for Biological Diversity (CBD) and WildLife Guardians, petition FWS to list a species as nearing extinction, and then shortly thereafter — sometimes in a matter of days — sue the federal government for inaction. Under the Obama administration, the feds have been increasingly likely to enter into a consent agreement with the environmentalists to fast-forward the decision-making process (see below chart).

Source: U.S. Chamber of Commerce, "Sue and Settle: Regulating Behind Closed Doors"

Pruitt’s action comes just a week ahead of a widely anticipated ESA listing of the lesser prairie chicken, a range bird the size of a small turkey. This colorful bird is found in states such as Texas, Oklahoma, Kansas, and New Mexico, and, according to a spokesman at Continental Resources, a major oil-and-gas driller based in Oklahoma, listing it as an endangered species “could disrupt drilling and exploration on hundreds of thousands of very promising oil and gas lands” in the Southwest.

Mr. Pruitt tells me that “the sue-and-settle timelines are way too short for the FWS to make determinations based on a thorough review of the science.” He also claims that the FWS has violated federal law by “ignoring state and local conservation measures” in the affected states despite millions of dollars invested.

Here’s a little secret: This fight isn’t really about saving prairie chickens. Environmental groups like the CBD make no secret on their websites of their desire to shut down local oil and gas drilling in order to combat global climate change. In short, they have in their sights fossil fuels and anything that promotes them. Currently about 250 species are being considered for addition to the endangered-species list thanks to the sue-and-settle racket. In addition to the prairie chicken, the sage grouse — another pheasant that populates the western states — is also under consideration for inclusion on the ESL. According to the Resources First Foundation, a group that promotes resource conservation and responsible land use, “millions of acres of land could be removed from drilling, farming, ranching, and mining” if these birds are designated as facing extinction. RFF says that the bird populations have fallen in recent years, but because of the drought out West, not private and lawful commerce.

Sue and settle is especially pernicious because it allows the FWS to bypass the normal scientific-inquiry process. Oftentimes cozy relationships between anti-development green groups and Obama-administration bureaucrats grease the process for an endangered listing — whether it is warranted or not.

At stake here is whether millions of acres of some of the most promising oil and gas lands will be opened for production. Right now some of the ESA rules require a development quarantine zone of four square miles around an area where these birds are discovered. Ranching, farming, and mining would also be prohibited in these areas. All this purportedly to save a chicken.

Westerners are right to wonder whether this is all part of a “war against the West in Washington.”

Many small towns west of the Mississippi could be economically wiped out by the ESA. That’s why Mr. Pruitt’s suit is so important. If he loses in court, and if the prairie chicken is listed as threatened, the real endangered species will be Americans with good-paying jobs. The scary thing is that might just be the point.

 - Stephen Moore is chief economist with the Heritage Foundation.

Originally appeared in The National Review