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Legislating Through Litigation: How the EPA, IRS and Other Agencies are Getting Around Congress

You sue me to demand the policy change that we both want and I'll let you win.

Image source: Getty Images

More environmental law is about to be written without even bothering the Congress or the president. If air travel is in your future you will pay for it.

The Friends of the Earth and the Center for Biological diversity have notified the Environmental Protection Agency that they intend to sue over the greenhouse gas pollution from aviation gasoline used by airplanes. The deck is stacked!

The plaintiffs are using U.N. estimates of the amount of carbon emissions attributed to air travel. According to the International Civil Aviation Organization, a division of the U.N., it is estimated that aircraft are responsible for 3.5 percent of the global warming impact caused by human activity. United States travel makes up a significant portion of that percentage.

In this Wednesday, Aug. 1 2012 photo, American Airlines airplanes are at parked at the gate at JFK International airport in New York. U.S. Bankruptcy Judge Sean H. Lane on Tuesday, Sept. 4, 2012 threw out the union contract of American Airlines' pilots as part of the company's restructuring. A key part of the bankruptcy proceedings, the ruling clears the way for the Fort Worth, Texas-based airline to dramatically cut costs and quicken its emergence from Chapter 11 bankruptcy protection.Credit: AP Credit: AP

The Environment and Natural Resources Division of the Department of Justice will likely defend the EPA. They have a track record.

Radical ideologues in the environmental movement conspire with the radical ideologues at the EPA and the ENRD to increase environmental restrictions. Since all agree on the desired result they can agree on the terms of a lawsuit that is then filed against the EPA. After a respectable period of time the administration decides not to defend the suit and concedes the claim to the environmental group.

The EPA, the lawyers and the environmental group then write a settlement agreement that achieves the agreed-upon goals which is presented to the presiding judge who signs a consent decree and voila, binding regulation is finalized.

In a recent book, "Obama’s Enforcer: Eric Holder’s Justice Department," the authors John Fund and Hans von Spakovsky point out that between 2009 and 2012 this scheme was successful in gaining consent decrees in more than 60 cases without having to contend with the drudgery of the legislative or regulatory process. More than 100 new federal rules were established costing hundreds of millions of dollars annually.

Photo Credit: Getty Images. Photo Credit: Getty Images.

The “sue and settle” scheme has been used effectively to stop economic development costing the economy tens of billions of dollars according to the U.S. Chamber of Commerce. The EPA invites outside groups to sue for protection of an obscure species under the Endangered Species Act. A settlement is agreed to and upon the signature of a judge, economic development is stopped.

Harold Hamm, president of Continental Resources, argues that it is a “sham technique to interfere with oil and gas drilling.”

If the scheme succeeds in achieving the listing of the prairie chicken as an endangered species, hundreds of thousands of acres in Texas and Oklahoma, in some of the most promising areas for oil exploration, will be taken out of production.

In addition to shutting down energy development the radical environmental groups can support their entire budget with the legal fees granted in these bogus settlements. Lawyers present to the court their time sheets charging as much as $500 per hour and the court awards the fees. That is currently being addressed in Congress.

(Source: Shutterstock) (Source: Shutterstock)

By going through the courts they avoid confronting the various states, which have a vested interest in economic development. The attorney general of Oklahoma, joined by 11 other state attorneys general, has filed a lawsuit against the EPA arguing that legislating through litigation removes the states from their proper seat at the table.

The EPA is not the only agency of your federal government entering into cozy arrangements with their ideological friends to impact policy, The Internal Revenue Service is in on the scheme as well.

In 2012 the Freedom From Religion Foundation, a group of atheists headquartered in Madison, Wisconsin, filed suit against the IRS demanding closer scrutiny of church activity with respect to electioneering. They have just reached a settlement with the IRS. Churches may not engage in overt political activity that specifically endorses or urges the defeat of any candidate for office. They may engage in support of, or opposition to, political issues that bear on their church’s moral positions. Watch for that to drift into more suffocating oversight.

The consent decree assures that IRS auditors will be listening to more sermons than usual.

But back to your air travel: The planes will still fly, but the reformulated fuel will be very expensive and will probably be seen as another “fee” on your ticket.

Perhaps they will take their lead from the United States Navy, which responded to President Barack Obama’s “green” energy directive by switching from $3.60 a gallon fuel to fuel that costs $26 per gallon.

It’s only money.

John Linder served in Congress for 18 years from Georgia. He and his wife, Lynne, have retired to a farm in Northeast Mississippi. He can be reached at linderje@yahoo.com.

TheBlaze contributor channel supports an open discourse on a range of views. The opinions expressed in this channel are solely those of each individual author.

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