Trashing the Presumption: Intervention on the Side of the Government

Article excerpt

I.   INTRODUCTION
II.  INTERVENTION: RULE 24 OF THE FEDERAL RULES OF CIVIL PROCEDURE
III. MINIMAL BURDEN TEST: THE TRBOVICH CASE
IV.  ORIGINS OF THE PARENS PATRIAE DOCTRINE
V.   TRASHING THE PRESUMPTION
     A. The Presumption Rests on Shaky Precedent
     B. The Presumption Is Inappropriate for the Modern Federal
        Administrative State
        1. The Presumption Is Rendered Irrelevant when Economic
           Interests Are Threatened
        2. The Presumption Leads to Inconsistent Judgments when
           Environmental Interests Are Threatened
        3. Adequate Representation by the Government Is Impossible
           in Some Situations
        4. Political Realities Impact Administrative Policies
        5. Political Realities Impact Judicial Decisions
        6. A Novel Approach Shows Potential but Fails to Protect
           Intervenors
        7. Sixth Circuit Rejects Parens Patriae
VI.  CONCLUSION

I. INTRODUCTION

Intervention as a matter of right under Rule 24 of the Federal Rules of Civil Procedure (Rule 24) provides environmental groups a path to protect aesthetic and conservation interests threatened by existing litigation. (1) Courts typically construe Rule 24 liberally in favor of intervention, recognizing efficiency gains from single-proceeding dispute resolution and improved decision quality from optimal information availability. (2) Congress may confer statutory intervention of right, (3) but more commonly, Rule 24 offers proposed intervenors an opportunity to join existing litigation to protect interests facing possible impairment. (4) The proposed intervenor must show a "direct, substantial, and legally protectable" (5) interest that "may as a practical matter" suffer impairment from the existing litigation. (6) When the proposed intervenor establishes a sufficient interest and possible impairment to that interest, a motion to intervene will be granted if the would-be intervenor can establish that existing parties in the litigation will not adequately represent that interest. (7)

Adequacy of representation is presumed when the interests of the intervenor and the existing parties are identical. (8) When an existing party is a governmental body, there is a further presumption that the government, operating in its sovereign capacity, represents the interests of all citizens. (9) This presumption stems from a common law doctrine known as parens patriae, or literally "parent of his or her country." (10)

The presumption of adequate representation by the government unfairly limits intervention by environmental groups, public interest groups, and business interests alike, and should be abandoned in favor of a "minimal burden" approach. Courts must recognize the realities inherent in today's complex regulatory environment and polarized electorate. Governmental organizations represent broad interests applicable to all citizens, and cannot effectively represent narrow and possibly conflicting interests, whether environmental or economic. Governmental regulators also shift positions based on political forces, a phenomenon especially prevalent on environmental issues over the last thirty years. (11) Environmental groups attempting to intervene on behalf of the government to protect noneconomic interests such as clean air and water, endangered species, and open wilderness, face inconsistent application of the presumption. (12) With little United States Supreme Court guidance in this area, federal court decisions vary both by federal circuit and by time, with political polarization impacting the courts as well. Groups representing economic interests currently enjoy a straightforward path to rebut the presumption, but the sensitivity of intervention decisions to political trends should motivate commercial and environmental groups to work together in favor of a "minimal burden" standard. By eliminating the presumption of adequate representation, all organizations with legitimate interests facing impairment by existing litigation can intervene consistently, allowing the judicial system to reap the benefits of economies of scale and decision accuracy. …