When the Environmental Protection Agency said in late June that it would force Western coal-fired power plants to install haze-reducing pollution-control equipment at a cost of $1.5 billion a year, it said it had to in order to settle a lawsuit by environmental groups.
One organization involved in the suit, the Environmental Defense Fund, has a long history of taking the EPA to court. In fact, a cursory review finds almost half a dozen cases in the past 10 years.
The odd thing is that the EPA, in turn, has handed EDF $2.76 million in grants over that same period, according to an IBD review of the agency's grant database.
This strange relationship goes well beyond EDF. Indeed, several environmental groups that have received millions in EPA grants regularly file suit against that same agency. A dozen green groups were responsible for more than 3,000 suits against the EPA and other government agencies over the past decade, according to a study by the Wyoming-based Budd-Falen Law Offices.
The EPA even tacitly encourages such suits, going so far as to pay for and promote a "Citizen's Guide" that, among other things, explains how to sue the agency under "citizen suit" provisions in environmental laws. The guide's author — the Environmental Law Institute — has received $9.9 million in EPA grants over the past decade.
And, to top it off, critics say the EPA often ends up paying the groups' legal fees under the Equal Access to Justice Act.
What's going on?
"The EPA isn't harmed by these suits," said Jeffrey Holmstead, who was an EPA official during the Bush administration. "Often the suits involve things the EPA wants to do anyway. By inviting a lawsuit and then signing a consent decree, the agency gets legal cover from political heat."
Holmstead called this kind of litigation "sweetheart suits."
He cites the EPA settlement of a greenhouse gas emissions suit as a good example.
The suit, filed in 2008 by EDF, the Natural Resources Defense Council (which has received $6.5 million in EPA grants since 2000), the Sierra Club and several states, sought to compel the EPA to issue greenhouse gas "performance standards" for power plants and refineries. In its settlement, the EPA agreed to do that.
"This is hard to describe as anything other than a victory for the states and the environmental plaintiffs," wrote Nathan Richardson of the nonpartisan think tank Resources for the Future in a paper. "By committing to performance standards in the settlement agreement, the agency is tying its own hands."
That sparked an outraged letter from House Energy and Commerce Committee Chairman Rep. Fred Upton, R-Mich., and Sen. James Inhofe, R-Okla., ranking member of the relevant Senate panel, who said the costly settlement was "concocted in secret" and that it was "entirely discretionary, no court ordered them."
The EPA and EDF did not respond to requests for comment.
Rep. Ed Whitfield, R-Ky., who heads the Energy and Commerce Committee's energy and power panel, warns that environmental policy is increasingly being "being determined by privately settled lawsuits and monetary payoffs with absolutely no input from elected representatives."
Other examples of EPA grantees suing the agency:
In 2005, several states and environmental groups — including EDF and NRDC, along with Physicians for Social Responsibility ($135,000 in an EPA grant) — sued the EPA claiming its mercury rule didn't go far enough. In 2008, the courts agreed. Now the EPA, under a court-supervised deadline negotiated by the EPA, the EDF and others, has until mid-November to complete rules cutting emissions of mercury and other toxins that the agency says will cost $11 billion a year.
• In 2006, EDF, the NRDC and others — including several states — sued the agency for its decision not to regulate carbon dioxide.
• In January 2009, the Chesapeake Bay Foundation filed suit claiming the EPA wasn't doing enough to clean the bay. That July, the EPA gave the foundation a $1.3 million grant to retrofit a dozen boats as part of the stimulus bill.
• Last year, the Pesticide Action Network ($238,000 in EPA grants) and the NRDC sued to force the agency to ban the pesticide chlorpyrifos.
• This May, the NRDC, Physicians for Social Responsibility and others announced plans to sue the EPA for failing to enforce smog standards in California.
Defenders of all this litigation say there's no connection between the grant money — which is for specific projects or programs — and the suits, and point out that these groups are simply trying to get the EPA to do what the law requires them to do.
But those suits could be less frequent if Sen. John Barrasso, R-Wyo., has his way. His bill would deny environmental groups whose net worth exceeds $7 million from getting their legal fees paid for by the Equal Access to Justice Act. He'd also cap attorney fees at $175 an hour.