An Analysis of the Problems at the MBTA: Is This the Origin of “Sue-and-Settle”?

On Sunday, the Boston Globe had a fairly comprehensive look at the causes of the current failings of the MBTA.  MBTA-Bus-Snow (1)Interesting reading for those who like to belabor the obvious.  The short version?  Lack of political will and combined with a typical willingness to spend money we didn’t have.

As an environmental lawyer, I found the article interesting, because a discussion of the origin of the Big Dig transit commitments – a story I know pretty well – for the first time turned on a light bulb for me.  This could be seen as the genesis of the practice of “sue-and-settle.”

I know that there are arguments that today’s “sue-and-settle” debates are made up by those who don’t like citizen suit provisions.  I know that this type of deal is time-honored and that lots of examples could be found that pre-date the Big Dig.  I even know that CLF and the Commonwealth settled the Big Dig matter before CLF even had to bring suit.  Nonetheless, read the following passage and tell me that it doesn’t sound very much like a conspiracy between a plaintiff and a willing defendant:

The public transit projects were already in the state’s long-term plans. But advocates were concerned that the next governor would not have the same enthusiasm for the T as Dukakis, who routinely rode the Green Line to work.

Indeed, while there was an element of threat involved — the foundation said it would sue to block the Big Dig unless the public transit projects were locked into place — the advocates had a willing partner in the corner office. The two sides came to an agreement on the MBTA projects. And Dukakis’s environmental affairs secretary made a key sign-off on the governor’s final day in office.

And thus, a fine tradition was born.  That’s my version of history and I’m sticking to it.

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