I got a call from a reporter who was asking about a lawsuit filed by 6 attorneys general to force the EPA to regulate wood burning boilers, fireplaces and other sources of wood burning in the Northeast.
Imagine that.
The interview gave me an opportunity to work the issue. Collusive lawsuits are a fraud on the court and the judicial system. Two parties pretend to be opposed on an issue and hope to achieve a court settlement or decision that achieves their mutual goal. It’s a lie wrapped in legal paper.
Typical example is the American Lung Association that receives millions of dollars from the US EPA suing the US EPA for more stringent air regulations. The principle in law is that courts are available for cases in controversy–do you think that after a suit has been filed by the American Lung Association and the Judge advises the US EPA and the American Lung Association to work out a settlement, that there is a conflict at the settlement conference?
So what would you expect of the consent decree validated by the court in charge of the case? Imagine that parties that might object got a chance to voice their objections, people like the voters or taxpayers?
So, for example the reluctant EPA endured an attack by many attorney’s general on the issue of carbon dioxide and why it was a pollutant.
And of course the craven judiciary pretended that it was a real dispute and provide the mutually agreeable decision on the endangerment finding.
It happens in consent decrees on all kinds of things–judges jump in as executors and arbitrators of issues that are political because lawyers cobble together phony lawsuits that put the issues in front of a judge who would like to be a central planner. After all judges are oligarchs by sentiment and inclination.
Another extreme example is civil rights suits that end up with judge supervised “consent decrees.”
http://www.democracybydecree.com/
I was talking about the enviro’s suing the EPA. “Standing” seems to be (a) injury, (b) injury was caused by the law and (c) the injury can be redressed by court action. Gives the federal courts the means to kick out whomever they want. I just read that the 9th circuit kicked out an enviro group. On the endangerment finding, the court (wrongly IMHO) ruled that the EPA was entitled to do this and had followed the correct rules. How they got that out of an automotive tailpipe standard beats me and how pollutant emissions >250 tpy is not PSD also beats me (tailoring rule). But then every time I think I understand the logic in environmental law and regulations I drink cheap whiskey until I get over it.
Cases in controversy, real disputes, are the business of the courts, not “friendly” or “collusive” lawsuits. Any judge worth his salt who takes his oath and his legal knowledge seriously would throw a collusive lawsuit out and should.
However, as Robert Nagel, one of my favorite con law professors, long time at U of Colorado, has written, judges are lawyers in robes and they do like the role of oligarch. It is not surprising they will find reasons to impose their preferences and they do put their finger on the scale and their pen to the task when presented with an opportunity to be in charge and impose their preferences.
In the case of environmental issues, judges are as well educated as the typical college grad, so do you think they have been indoctrinated in the environmentalism that is in style–or the socialist mindset that accompanies it?
It’s a fraud on the people. Not so sure about a fraud on the courts. They’re both well aware of it and have no rules against it. Stealing power by legality.
Actually, no. When a group of state and industry associations challenged the endangerment findings, they were kicked out for lack of standing, finding that effectively no one has standing to challenge the EPA’s endangerment finding unless they want to increase regulation
Well, john, you know the tax payers and “stakeholders” are represented by both sides in this lawsuit. So, why do we need to hear from the peasants?