INTRODUCTION I. THE BACKGROUND AND LEGAL STANDARD FOR SUE-AND-SETTLE CONSENT ORDERS A. General Consent Decree Doctrine B. Consent Decree Procedure for Government Entities C. Intervention Under Rule 24 and Joinder Under Rules 19 and 21 D. Modification II. THE EFFECT OF SUE-AND-SETTLE ON ENVIRONMENTAL POLICY A. General Application to the Environmental Context and Regulator Incentives B. Specific Application to the Environmental Context 1. Toxics Consent Decree 2. Regional Haze Consent Decrees 3. Florida Water Pollution Consent Decree 4. Greenhouse Gas Consent Decree 5. EME Homer City Generation, L.P. v. EPA III. THE NEGATIVE IMPACT OF SUE-AND-SETTLE ON COOPERATIVE FEDERALISM A. Federalism Can Improve Environmental Policy 1. Sue-and-Settle Undermines the Principles of Federalism That Currently Exist in the United States 2. Sue-and-Settle Diminishes the States' Granted Role in Setting Environmental Standards and Regulations 3. Sue-and-Settle Consent Decrees Usurp the States' Role in Federal Rulemaking B. Allowing Comments Is Ineffective C. State Intervention Is Thwarted D. Modification Is Not a Serious Option E. State Challenges in Federal Court Are Not Adequate F. Direct Impact of Leaving States Out: Low Quality and Harmful Regulations IV. PROPOSED SOLUTIONS A. Enhanced Judicial Monitoring of Sue-and Settle Consent Decrees B. Modification of F.R.C.P. 24 V. CONCLUSION
Federal environmental policy has long relied on the States to assist in the development and implementation of environmental regulations. (1) Under this "cooperative federalism," states administer federal rules but have flexibility in setting standards and enforcement priorities. (2) In recent years, environmental advocacy groups increasingly have succeeded in using a strategy of faux litigation to trample the statutory regulatory framework and to shut out the States from important policy decisions. (3) This policymaking process--called "sue-and-settle" or "suit-and-settlement" (4)--not only violates the statutory framework, but also leads to haphazard policymaking.
Environmental advocacy groups and federal regulators are using sue-and-settle to shut the States out of their statutorily created roles. The basic scenario of this so-called institutional reform litigation (5) is straightforward. An environmental advocacy group sues a federal agency, usually the Environmental Protection Agency (EPA), for failing to adequately police state action under federal environmental laws. Specifically, the advocacy group alleges that the EPA has a nondiscretionary duty to ensure that states establish certain standards and that the agency has failed to do so. In many circumstances, the EPA's alleged failure is a failure to act when states themselves miss deadlines imposed by environmental statutes. (6) After the state fails, various statutes require the EPA to impose a federal implementation plan (FIP) that the state must follow. (7) At other times though, and significantly for the purposes of this paper, it is the EPA's failings--completely independent of the States--that leads to a consent decree. (8) The EPA and the advocacy group then settle the lawsuit, without any input from the states that were responsible in the first place and are now responsible for implementing the terms of the settlement. In the settlement agreement, the EPA is required to implement its own standard if the affected states fail to develop a standard by a settlement-imposed deadline. The settlement agreement also frequently establishes the standard, or at least the nature of the standard. The settlement is then entered as a consent decree and the terms bind the EPA under court order. …