Has the Environmental Protection Agency (EPA) colluded with some of the left’s favorite environmental groups in an effort to skirt state policymakers and pass some of the strictest environmental regulations to date? Oklahoma Attorney General Scott Pruitt and 11 of his colleagues have been asking the EPA that question for months. However, they have been continually denied answers despite complying with Freedom of Information Act guidelines.

Pruitt is leading a multistate effort to push back against what he alleges is the EPA’s latest encroachment on the Constitution – a legal gimmick known as “sue and settle.” According to Pruitt, the EPA encourages what it considers friendly environmental organizations to sue the EPA under various federal statutes such as the Clean Air Act. The EPA wastes no time is settling these cases through legal agreements called consent decrees. These binding consent decrees then allow the implementation of much stricter regulations that go well beyond the scope of existing laws passed by Congress. These burdensome rules and regulations are enacted without any input from the states, or any elected official for that matter. Furthermore, they do not allow attorneys general to defend the rights of their citizens because they are barred from being a party to the litigation. The result is a major blow to both federalism and our representative form of government. To add insult to injury, the costs of the EPA’s actions are passed on to consumers in the form of utility prices that could increase as much as 13 to 20 percent.

The communications between the organizations that have settled cases through such consent decrees and the EPA are vital to proving Pruitt’s case. This information should be readily available through FOIA requests, but the EPA’s continued refusal to respond suggests that the EPA likes to play favorites. According to Pruitt’s complaint:

Ninety-two percent of the time EPA grants fee waiver requests from noncommercial requesters who are supportive of EPA’s policies and agendas, but denies a majority of fee waiver requests from noncommercial requesters who are critical of EPA.

Does the EPA seriously have the audacity to believe a “regulation-through-litigation type of initiative” in which it actually asks to be sued by its friends is preferable to federalism? Common sense suggests such an irrational policy based on cronyism is destined to fail. Without question, state policymakers thoughtfully balancing the interests of their citizens with that of a clean environment would achieve a better result. However, according to Pruitt:

The EPA is picking winners and losers, exhibiting favoritism, at the expense of due process and transparency. … They are manipulating our legal system to achieve what they cannot through our representative democracy. The outcomes of their actions affect every one of us by sticking states with the bill and unnecessarily raising utility rates by as much as 20 percent.

A clean, healthy environment to be enjoyed by future generations is an important goal shared by those on the left and the right. But let’s not sacrifice our constitutional principles of federalism and representative democracy. Doing so enables a federal government with a bad habit of cronyism. Instead, the EPA should provide an equal playing field by requiring both sides to follow the same guidelines when it comes to FOIA requests and should allow states to have their say when it comes to developing environmental rules and regulations.

[James Hall is an OCPA research assistant.]