Biden administration continues its anti-democratic ‘sue-and-settle’ masquerade

They now make no efforts even to be subtle.

“They” are the Biden administration agencies that regulate leasing for energy exploration in federal lands and waters, and leftist environmental groups driven by ideological imperatives.

These agencies, deeply politicized, have cut deals with the ideological groups, and nobody was at the table to represent the taxpayers’ interests. The groups themselves, meanwhile, seem to have little interest in actual environmental improvement, but an overwhelming interest in using regulation to make energy more expensive and reduce ordinary people’s living standards.

The latest example is the recent sue-and-settle dance between groups led by the Sierra Club and the National Marine Fisheries Service, in which the feds agreed to remove 6 million acres in the Gulf of Mexico from future oil and gas leasing. This is purportedly being done to protect the Rice’s whale.

In addition, the Bureau of Ocean Energy Management (of the Department of the Interior) — even though it was not a party to the case  — announced a “voluntary” set of “recommendations” and “guidance” for vessels engaged in existing fossil energy activities “within the Expanded Rice’s Whale Area (ERWA),” based on “one recent study.”

The recommendations include a speed limit of 10 knots, avoidance of transit through the ERWA during non-daylight hours and maintenance of a minimum of 500 meters of separation from Rice’s whales or any whales that cannot be confirmed as a species other than a Rice’s whale.

Where to begin? The BOEM description of its recommendations as voluntary guidance for existing oil and gas operations is a lot of hooey. Any fossil energy operations vessel harming a Rice’s whale in the ERWA while not adhering to the “recommendations” will likely be subject to the penalties specified in the Endangered Species Act of 1973. Moreover, the recommendations will be mandatory for operations beginning with lease sale 261, scheduled for Sept. 27.

The justification for the restrictions — protection of the endangered Rice’s whale — also is hooey, as the restrictions do not apply to the thousands of vessels engaged daily in fishing, construction of offshore wind energy facilities, or other activities not related to fossil energy operations. In BOEM’s view, then, it is unacceptable for an oil tanker to cause the death of a Rice’s whale, but if another vessel kills it then it’s just the cost of doing business.

So why is BOEM using this legal settlement to exclude significant amounts of additional acreage? One might argue that BOEM has no authority over such other vessels; but then why has the Biden administration not proposed that Congress impose such restrictions on all vessels operating in the ERWA? Are the Rice’s whales lives not worth it?

The obvious answer is that any such proposal would interfere with the nostrums about offshore wind heavily promoted by the administration, while also creating serious political problems with the other many industries and interests benefiting from the operation of vessels in the ERWA. So much for the protection of the Rice’s whale.

Other than the claims asserted in the “one recent study” cited by BOEM, what evidence supports the hypothesis that Rice’s whales are observed in the ERWA at all? The BOEM answer is that “the possibility of incidental take of Rice’s whale in the [ERWA] cannot be dismissed at this time,” a stance very different from an actual finding that such collisions are likely to occur. That kind of finding would have to be justified in a formal rulemaking subject to public notice and comment, an exercise in actual cost-benefit analysis that this sue-and-settle racket is designed explicitly to circumvent.

Sue-and-settle in general is an obvious end-run around Congress’s authority to enact policies, and the limitation on administrative agencies to implement only those policies that Congress has approved. It is therefore a collusive arrangement between ideological interest groups and federal bureaucracies. Such collusion affects interstate commerce significantly, and there is no reason in principle that it would be limited to the fossil energy sector. All sectors — agriculture, pharmaceuticals, defense industries, ad infinitum — are vulnerable to such tactics driven ideologically without congressional authorization.

Sue-and-settle, therefore, is a threat to democracy and to all industries and businesses, and should be opposed by all of them. It circumvents Congress’s power to enact policies through legislation. And because it involves the willing participation of the regulatory agencies themselves, it is unconstitutional. It is insulated from political accountability and therefore is fundamentally authoritarian.

Congress must preserve its legislative powers by taking steps now to end it.

Benjamin Zycher is a senior fellow at the American Enterprise Institute.