March 24–OKLAHOMA Attorney General Scott Pruitt has filed a lawsuit challenging the U.S. Department of the Interior and the U.S. Fish and Wildlife Service’s “sue and settle” practices, which dramatically expand federal regulations without public input. This is a worthy fight. If nothing else, Pruitt’s lawsuit highlights the complete absence of logic involved when federal officials make far-reaching regulatory decisions.
In “sue and settle,” environmental activists file lawsuits to have additional species granted federal Endangered Species Act (ESA) protections. Federal agencies quickly settle and reach agreements that expand their regulatory powers to the detriment of landowners, private businesses and even state governments.
For example, Fish and Wildlife recently agreed to settle a lawsuit over the listing status of numerous animal species, including the lesser prairie chicken. The agency agreed to determine whether to grant the chicken “threatened” status under ESA by March 31. As part of that settlement, the agency agreed to not consider granting the bird the less-significant “warranted but precluded” designation. If the animal is formally declared “threatened,” it will have major consequences in Oklahoma, where the chicken roams freely.
Pruitt believes “sue and settle” violates federal law and the constitutional rights of citizens. He notes ESA requires the federal government to make determinations on species’ listing “solely on the basis of the best scientific and commercial data available” while also taking in account state efforts to preserve animals. Oklahoma government, in conjunction with neighboring states and private industry, has designated $26 million for conservation of the lesser prairie chicken.
Yet the Fish and Wildlife Service “did not sufficiently review and analyze scientific data and conservation practices” prior to reaching its settlement agreement regarding the lesser prairie chicken, Pruitt said.
Under federal law, Pruitt notes the Fish and Wildlife Service can adopt or amend rules only if it “publishes notice of the proposed action in the Federal Register” and “gives interested persons an opportunity to participate in the rulemaking through submission of written data, views or arguments.”
“FWS effectively amended its regulations without publishing notice in the Federal Register, without giving the public an opportunity to comment, and without providing a statement of basis and purpose,” Pruitt’s lawsuit states. He argues the federal agencies’ “commitment in the settlements to ignore its regulations” is therefore a blatant violation of federal law.
Pruitt also argues “sue and settle” violates the due process clause of the Fifth Amendment, noting the U.S. Supreme Court “has long-recognized that settlements cannot bind nonparticipating third parties.” In contrast, U.S. Fish and Wildlife Service “claims the settlements bind the state and the regulated community to terms procured without their participation.”
Due to the slapdash processes used by special-interest activists and their agency allies, Pruitt’s lawsuit notes the federal government could soon grant the lesser prairie chicken “threatened” status without considering evidence that the animal’s range is expanding and its population is stabilizing and “may be increasing.”
In short, to settle frivolous litigation they tacitly invited, federal officials are prepared to smother economic activity in the name of saving a bird whose survival has already been assured. And they’re doing it using a system that sidesteps the democratic process and undermines legal and constitutional rights. If this doesn’t merit a state lawsuit, what does?