Increasingly, sue and settle is how rules are made in Washington. The U.S. Chamber of Commerce has found that more than 60 times in the last four years the EPA agreed to settlements with environmental groups to pass regulations that in some cases impose tens of billions of dollars of costs on industry and land owners. The feds have even paid green groups millions of dollars in legal fees for the favor of suing the government

Last week the U.S. Fish and Wildlife Service and an environmental advocacy group agreed to a legal settlement that will place nine species—including the Panama City crayfish, moccasinshell mussel and boreal toad—on the fast track for placement on the endangered species list. It is only the latest of many such listings.

The Center for Biological Diversity has petitioned Fish and Wildlife to designate some 250 species as endangered since 2008. Many of CBD’s petitions—and lawsuits—are still in the pipeline. About 97% of the species that are designated as endangered never move off the list.

Next March, Fish and Wildlife will make a determination about whether to add the lesser prairie chicken, found in Texas, Oklahoma, New Mexico and Kansas to the list. Harold Hamm, president of Continental Resources, says that the habitat for the prairie chicken overlaps “some of the most promising land for oil and gas leases in the country.”

Many Westerners suspect that this environmental activism isn’t only or even mostly about saving species and obscure subspecies. Instead, it is about restricting land use on hundreds of thousands of acres of private and state land. The concern is that if these species are listed as endangered, their habitat could be placed off limits for economic development.

 

The lesser prairie chicken, near Laverne, Okla. Associated Press

In the 1980s, environmentalists successfully used a listing of the Northern Spotted Owl as threatened to cripple the timber industry in Oregon and Washington, throwing many thousands out of jobs. This is the playbook now being used by groups like the CBD—which boasts on its website of its desire to end most oil and gas production in the United States.

Since taking office, the Obama administration and its green allies inside and outside federal agencies have been making expanded use of a tactic called “sue and settle” to issue new and expensive regulations. Groups like CBD and WildEarth Guardians, for example, petition Fish and Wildlife to list a species as endangered. Other environmental groups use a similar tactic to get new water and air regulations from the Environmental Protection Agency. Then, sometimes the very same day, the environmental groups file a lawsuit against Fish and Wildlife or the EPA to force the government to act—arguing that the regulatory process is too slow.

Amos Eno, a former Fish and Wildlife Service official who worked to save the grizzly bear and the condor, is critical of the tactic. Mr. Eno, who now runs Resources First, says the money wasted on these lawsuits could be used on conservation efforts to actually save species from extinction.

Because the federal agencies include former employees of green organizations, sue and settle can be a collaborative, not adversarial, process. The agency may be only too happy to sign a consent decree that courts then rubber stamp. Often, state and industry officials directly affected by the settlements have no opportunity to weigh in.

Increasingly, sue and settle is how rules are made in Washington. The U.S. Chamber of Commerce has found that more than 60 times in the last four years the EPA agreed to settlements with environmental groups to pass regulations that in some cases impose tens of billions of dollars of costs on industry and land owners. The feds have even paid green groups millions of dollars in legal fees for the favor of suing the government.

The Obama administration didn’t invent sue and settle, but the pace has increased dramatically since 2009—an era that Oklahoma Attorney General Scott Pruitt calls “sue and settle on steroids.”

Last September Mr. Pruitt and 11 state attorneys general presented a Freedom of Information Act request to investigate the communications between the Obama administration and environmental litigants. Their suspicion is that the two are secretly working hand in hand to grease the process of regulating industries it doesn’t like. A year has passed, but the EPA has refused to fully comply.

This summer Mr. Pruitt has joined with the other attorneys general—including from Texas and Utah—to sue the Obama administration to comply with the Freedom of Information Act. Mr. Pruitt also believes that sue and settle “is an end run around the Administrative Procedures Act.” This is the law that governs how regulations are promulgated, and requires among other things transparency and a reliance on science to justify new rules. “An administration which claims to only want to ‘follow the science’ has exploited a litigation mechanism to enact new rules imposed on us without reviewing the science,” Mr. Pruitt says.

The attorneys general also cite new EPA regional haze rules—which came into being because of sue and settle—that could raise electricity costs in their states by as much as 20%. On behalf of his fellow attorneys general, Mr. Pruitt says that “we’re very worried that under Obama sue and settle will be used by the EPA to issue new regulations on fracking.” This could kneecap the oil and gas boom in Western states.

In its report “Sue and Settle: Regulating Behind Closed Doors,” the U.S. Chamber of Commerce has counted more than 100 new major rules “with estimated compliance costs of more than $100 million annually” that arose from this tactic. The result is a giant tax on the economy brought to you by the Sierra Club and the Environmental Defense Fund with little or no input or oversight from Congress.

Sen. Charles Grassley (R., Iowa) and Rep. Doug Collins (R., Ga.) have introduced “Sunshine for Regulatory Decrees and Settlements Act of 2013” that would require all proposed consent decrees to be posted for 60 days for public comment before being filed with a court—and allow affected parties to challenge them. Members of Congress in both parties who are worried about the Obama regulatory assault will need to take corrective action if they have any hope of a true economic turnaround.

Mr. Moore is a member of the Journal’s editorial board.