There’s a little-known division of the Department of Justice that has been bilking the taxpayers of millions of dollars each year and redistributing it to its political and legal allies, creating costly and wide-reaching regulations without any congressional oversight or public comment and seeking to expropriate private land without compensation.
The name of this division? The Environment and Natural Resources Division (ENRD).
These revelations come from a new book out today titled “Obama’s Enforcer: Eric Holder’s Justice Department,” authored by the National Review’s John Fund and former presidential appointee to the FEC, counsel to the assistant attorney general for civil rights in the Justice Department and current Senior Fellow at the Heritage Foundation, Hans von Spakovsky.
The ENRD is the division of the DOJ that was responsible for the Gibson Guitar Corporation raid, which as some may recall nominally dealt with the legality of materials imported from Madagascar used in the fingerboards of the company’s guitars, in what appeared to be a politically motivated case. Part of the settlement that Gibson Guitar reached with the DOJ in order to continue as a going concern was to pay out $50,000 to the National Fish and Wildlife Foundation. The authors write:
“instead of making a payment to the U.S. Treasury Department for the American taxpayer, Justice in essence extorted money from Gibson Guitar to help fund the NFWF, a congressionally created private charity that hands out funds “to some of the nation’s largest environmental organizations, as well as some of the smallest,” according to its own website.
So basically, the Justice Department used its authority to engineer a settlement of government claims requiring the defendant to provide benefits to a private group that was not involved in the lawsuit and was not injured by the defendants’ actions.”
The Gibson Guitar case merely provides a window into the goals, tactics and ideology of this DOJ division, which the authors describe as as being full of the second most crazy and “ideologically driven lawyers” of any part of the DOJ, only behind the Civil Rights Division.
As noted in the book [emphasis ours]:
“Justice has done a lot of funding of private advocacy groups in its environmental litigation. In 2011, the Government Accountability Office issued a report on the costs of lawsuits filed against the EPA, which were defended by the Justice Department…the EPA and the Treasury Department are required to award attorneys’ fees to plaintiffs that successfully challenge the EPA…[the intent being to reimburse] the costs of those who have to sue the government when bureaucrats do something wrong–but that is not what is happening in the environmental area. Instead, the Justice Department and the EPA have engaged in collusive litigation with political allies and friends of the Obama administration…using taxpayer money to fund the budgets of liberal environmental organizations.
[sharequote align=”center”][DOJ and EPA] have engaged in collusive litigation…to fund the budgets of liberal…organizations[/sharequote]
According to the GAO report, Earthjustice, the former employer of Robert Dreher, who was acting head of ENRD at Justice in 2013, received 32 percent of the attorneys’ fees paid to EPA litigants. When combined with the attorneys’ fees received by the Sierra Club and the Natural Resources Defense Council, these three groups received 41 percent of millions of dollars paid out by the American taxpayer to environmental groups who were successful in their lawsuits against the federal government. As Senator David Vitter (R-LA)…said, ‘The GAO report shows that taxpayers have been on the hook for years while ‘Big Green’ trial lawyers have raked in millions of dollars suing the government. Even worse, because of sloppy record keeping by the EPA and other agencies and a lack of cooperation by the Justice Department, we’re not even sure how bad the problem really is.'”
But perhaps even more outrageous is a process called “sue and settle.”
Here’s how it works: Special interest advocacy groups sue the EPA. The EPA, represented by the lawyers of the ENRD, chooses not to defend itself against such lawsuits. The EPA and the environmentalist groups who sued them agree to a settlement “on terms favorable to those groups.”
From 2009 to 2012 alone, at least sixty such cases resulted in “more than 100 new federal rules, many of which are major rules with estimated compliance costs of more than $100 million annually.”
As the authors write:
“almost all of the most costly of EPA’s rule-makings have been settled by the Justice Department lawyers through consent decrees without defending the suit. With such “losses,” the lawyers of the ENRD are either professionally incompetent or willing participants in betraying their professional obligations to represent the public rather than the interests of advocacy groups and the particular policy choices of the administration.”
This process effectively allows the Obama administration to thwart Congress, the businesses affected by such legislation, and the public to whom such regulatory costs are ultimately passed:
“these lawsuits and resulting settlements…provided an end run around the normal agency rule-making process, cutting out the public and affected parties, like the business community that might protest or try to stop a bad regulation. Neither the EPA nor the Justice Department discloses the filing of such a lawsuit by a group like the Sierra Club until the case is over, when a settlement agreement has been negotiated and filed with the court. Often this allows the administration to issue regulations or requirements that go beyond their statutory authority.
[sharequote align=”center”]these lawsuits and resulting settlements..provided an end run around the normal..rule-making process[/sharequote]
Thus they can use a legally binding, court-approved settlement agreement “negotiated behind closed doors” as their authority to issue, for example, a new regulation on a specific timetable and with specific requirements…by colluding with their political and ideological allies in the radical environmental movement, the administration can essentially short-circuit the regulatory process and implement whatever rules the administrations wants by throwing the case, failing to defend, waving the white flag of surrender, and agreement to settlement that has what both sides (who are really on the same side) want.”
And besides allowing the administration to effectively pass regulations through court “rubberstamping” of settlement agreements, the administration’s environmental allies are rewarded:
“the federal statutes awarding attorneys’ fees to winning parties allow taxpayer funds to be transferred to the organizations that initiated the friendly lawsuits the administration wanted filed.”
“The administration gets the burdensome new rules it wants without having to go through the normal transparency and review process, while at the same time helping its political allies. And the American taxpayer pays for it all.”
In addition to effectively “rewarding its friends and punishing its enemies,” the ENRD also intervenes in the lives of private citizens, seeking to subvert the “takings clause” of the Constitution:
“No one doubts the power of the government to take private land for a public purpose, but the Fifth Amendment requires the government to pay “just compensation” for such a taking. However, the Justice Department under Eric Holder has refused to accept that situation and has instead taken what many have called a “scorched earth” approach, arguing in court that private landowners don’t actually own their property that is taken for the environmentally popular rails-to-trails programs [whereby the government takes railroad corridors established by easements through private land that have been abandoned by the railroads and converts them to biking and hiking trails].
The DOJ in various court cases has “‘started stipulating liability’ for taking private property, making the only issue in such seizure cases what “just compensation” would be for the homeowner.”
And the legal maneuverings being used by the DOJ to enable environmental policy goals are particularly deplorable. The authors, quoting a lawyer who defended a small village against the government in such a case, write:
“‘the Justice Department’s history of repeatedly taking frivolous and losing arguments–and recycling these same losing arguments–can only be explained by an intentional strategy of trying to make this litigation so lengthy and so expensive that landowners will let the government simply take their land without being’ compensated…He says he is aware of at least twenty cases that Justice lawyers have lost in which they made “essentially the exact same losing argument” each time. The cost to taxpayers…has been enormous.”
This represents only one exposé of many in Fund and von Spakovsky’s bombshell new book, which gives readers shocking insights into not only Eric Holder’s sordid past and controversial present, but the racialist practices of the DOJ Civil Rights Division, the truth behind the “Fast and Furious Scandal,” the appointments of radical lawyers who chose to represent terrorists in the DOJ, and the overall lawlessness, deceit and overall politicization of the one executive agency that most requires commitment to the rule of law, honesty and impartiality.
Editor’s Note: Hans von Spakovsky will be a guest on Wilkow! tomorrow, June 11th at 7PM EST.