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.”
Schools, welfare agencies, and a wide variety of other state and local institutions of vital importance to citizens are actually controlled by attorneys and judges rather than governors and mayors. In this valuable book, Ross Sandler and David Schoenbrod explain how this has come to pass, why it has resulted in service to the public that is worse, not better, and what can be done to restore control of these programs to democratically elected—and accountable—officials.
Sandler and Schoenbrod tell how the courts, with the best intentions and often with the approval of elected officials, came to control ordinary policy making through court decrees. These court regimes, they assert, impose rigid and often ancient detailed plans that can founder on reality. Newly elected officials, who may wish to alter the plans in response to the changing wishes of voters, cannot do so unless attorneys, court-appointed functionaries, and lower-echelon officials agree. The result is neither judicial government nor good government, say Sandler and Schoenbrod, and they offer practical reforms that would set governments free from this judicial stranglehold, allow courts to do their legitimate job of protecting rights, and strengthen democracy.
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