406 Dirksen Senate Office Building

Sen. Jim Inhofe

Thank you Subcommittee Chairman Rounds for convening today’s oversight hearing, and thank you to our witnesses for being here to testify. Today’s hearing is very timely given the President’s finalized carbon mandates released just yesterday. These rules are truly the poster child for what is wrong with “sue-and-settle” tactics under the Obama Administration.

In this case, the U.S. Environmental Protection Agency (EPA) and far-left environmental activists entered into a settlement agreement to issue unprecedented carbon cutting regulations for power plants by an unrealistic deadline. As with most “sue-and-settle” scenarios, EPA rushed the rules, based on shaky legal grounds and poor economic analysis, while circumventing important interagency review that is only meant to strengthen the quality of regulations.

Indeed, the rules were not the result of a well thought out stakeholder driven and open regulatory process. Instead, they were years in the making behind closed doors, and after years of regulatory uncertainty and critical investment decisions by states and affected entities, it is likely a court will strike the rules. Yet, it appears the Obama EPA does not care about the final outcome of the rules as the years of potential litigation will only further distance current senior officials from responsibility for the devastating impacts of these rules. Showcasing this mentality, in response to the recent Supreme Court decision on EPA’s mercury rule, current EPA Administrator Gina McCarthy shrugged off concerns over a court potentially vacating the rule because the investments were already made; essentially the damage has been done.

This “sue-and-settle” to regulate now and litigate the merits later strategy is why “sue-and-settle” is counter to administrative law and principles for government transparency. When the federal government enters into a settlement agreement that binds the agency to future action, it should take place in the sunshine, not behind closed doors. However, the testimony we will hear today highlights how “sue-and-settle” undermines the public interest, by allowing special interests to set an agency’s agenda while excluding states and other interested parties from the process. Limiting key stakeholders from the process to a cursory public comment period—after a settlement has already been reached—is too late in the process and does not afford those tasked with implementing the resulting regulations to fully analyze a proposal and plan accordingly.

Testimony today will also shed light on “sue-and-settle” tactics used at the U.S. Fish and Wildlife Service (FWS) that similarly bind the Service to make Endangered Species Act (ESA) listings based on questionable science and rushed review. In these cases, special interests appear to target species that lock up areas for important development and job creation, rather than species that may have been most in need of potential protection under ESA.

Above all, whether at EPA or FWS, a theme that will stand out from today’s testimony is that the Obama Administration has not been forthright with the American people in its regulatory plans. An open and transparent regulatory process that provides the opportunity for stakeholder and public participation can only result in better, more effective, and legally sound rulemaking decisions. Instead, the current regulatory regime employed by the Obama Administration through “sue-and-settle” appears to only result in legally shaky rules that incentivize further litigation, expend more taxpayer dollars and agency resources, and ultimately stall meaningful environmental and public health benefits.

I ask that my full statement be entered into the record. Thank you.

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