Sue, Settle, and Shut out the States: Destroying the Environmental Benefits of Cooperative Federalism

By Butler, Henry N.; Harris, Nathaniel J. | Harvard Journal of Law & Public Policy, Spring 2014 | Go to article overview

Sue, Settle, and Shut out the States: Destroying the Environmental Benefits of Cooperative Federalism


Butler, Henry N., Harris, Nathaniel J., Harvard Journal of Law & Public Policy


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 

INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Sue, Settle, and Shut out the States: Destroying the Environmental Benefits of Cooperative Federalism
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.