The Biden administration set records for sue-and-settle cases, according to a new study that said the EPA paid out $10.9 million in lawyers’ fees from 2021 to 2024 while working with environmentalists to set policies outside of what the law requires.
Sue-and-settle cases are where plaintiffs go to court, negotiate consent decrees setting new policies, then are awarded payment for their attorneys’ time.
Cases are particularly prolific in environmental policy, where the Clean Air Act, Clean Water Act and Endangered Species Act are prominent battlegrounds for sue-and-settle.
Critics say it sets up a perverse incentive for administrations to work with environmentalists to force the government into policies that couldn’t make it through Congress. Because they are legal settlements, they are binding on future administrations, just as if they were written into law.
Open the Books, a spending watchdog, said the government reached hundreds of settlements and paid out $20.3 million in lawyers’ fees associated with those settlements from 2013 to 2024.
President Obama racked up $5.7 million of those fee awards, President Trump cut that to $3.6 million in his first four years, then President Biden oversaw a surge, to $10.9 million.
The Sierra Club made out the best, according to Open the Books, collecting more than $4 million in lawyers’ fees over that time.
Northwest Environmental Advocates, the Center for Biological Diversity, the Environmental Law & Policy Center and the Natural Resources Defense Council rounded out the top five, with each collecting at least $1 million.
Open the Books said the Trump administration made a concerted effort to limit the practice, with the Environmental Protection Agency in 2017 ordering an end to using consent decrees to circumvent the usual policymaking process.
The Biden EPA ditched those restrictions in 2022.
Open the Books said sue-and-settle gets even more “pernicious,” given the sordid employment practices at play. Lawyers will often move from private firms or advocacy groups that sue to go work for an administration, making their motives questionable.
“Lawyers at the agency may be less inclined to vigorously defend the agency’s interests and more inclined to reach a settlement that favors the litigants,” Open the Books said.
