406 Dirksen Senate Office Building

Sen. Mike Rounds

The Environment and Public Works Subcommittee on Superfund, Waste Management, and Regulatory Oversight is meeting today to conduct a hearing on “Oversight of Litigation at EPW and Fish and Wildlife Service: Impacts on the U.S. Economy, States, Local Communities and the Environment.”

Today, we are meeting to hear testimony on the impact environmental litigation has on the economy, states and communities. Both the Clean Air Act and the Endangered Species Act contain provisions allowing for citizens to file a “citizen suit” against a regulatory agency to assure an agency’s compliance with federal statutes.

While originally well-intentioned, these citizen suits are being used to perpetuate what is often referred to as a “sue and settle” process that overwhelms regulatory agencies, resulting in settlement agreements and consent decrees requiring agencies to promulgate major regulations within an arbitrarily imposed timeline. These agreements are often negotiated behind closed doors, with little to no transparency or public input. Although the ultimate parties responsible for the regulations are the states and regulated entities, they have been nearly completely cut out of the process and are not consulted about the practical effects of the settlement agreement. Public comments from the states and industries regarding the feasibility or impact of these regulations are routinely ignored.

Further, these citizen suits allow Non-Government Organizations – or NGOs – and the Administration to advance their own policy agenda while circumventing the entire legislative process and Congress. As a result, major regulations that cost billions of dollars, stifle economic growth and inhibit job creation are being made by unelected bureaucrats in Washington who think that they know what is best for everyone.

Under the Clean Air Act, citizen suits have been used to impose major regulations without any input from Congress and little to no input from the states. A study by the U.S. Chamber of Congress found that EPA reconsideration of the 2008 Ozone National Ambient Air Quality Standards could cost up to $90 billion annually to comply with – making it the most expensive regulation in history. Also, the utility MACT rules cost an estimated $12.6 billion in compliance costs and the regional haze implementation rule cost approximately $2.16 billion to comply. These exorbitant compliance costs result in the closure of U.S. power plants and the loss of U.S. jobs, while the benefits they bring about are questionable.

Further, states have been so entirely shut out of the process that their opposition is rarely given serious consideration. When the EPA promulgated sulfur dioxide regulations, every single state that commented about the regulation voiced its opposition. But rather than working with the states to address their concerns, the EPA ignored their comments and moved forward with the regulation.

Additionally, the Fish and Wildlife Services is in the middle of potentially listing more than 250 species as endangered or threatened on the Endangered Species List. Called one of the largest federal land grabs in modern times, this is the result of a mega-settlement between the Fish and Wildlife Service and NGO’s that intentionally overwhelmed the agency with listing petitions simply so they could sue the Fish and Wildlife Service for failing to meet statutory deadlines. Because the Fish and Wildlife Service is now bound to court imposed deadlines to make these listing decisions, the agency is rarely inclined to engage states, industries and landowners in real conservation efforts. As a result, these listings exemplify heavy-handed federal regulation rather than serious collaborative efforts to conserve and recover species.

The impact of these lawsuits is being especially felt in South Dakota, where our only coal plant, the Big Stone plant, is in the midst of a $400 million dollar upgrade to comply with EPA’s regional haze rule. This project is not even completed yet, and now this plant may not even be able to operate at all in order to comply with the Administration’s Clean Power Plan.

The “sue and settle” process has resulting in regulations that stifle innovation and hurt the future of this country by crushing the can-do American spirit that founded our nation, settled the West, won two world wars and put a man on the moon. I’d like to thank our witnesses for being with us here today and I look forward to hearing your testimony.

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