Abstract

http://ssrn.com/abstract=2343273
 


 



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


Henry N. Butler


George Mason University School of Law

Nathaniel J. Harris


George Mason University - School of Law; United States Court of Appeals for the 10th Circuit

October 21, 2013

Harvard Journal of Law and Public Policy, Vol. 37, No. 2, pp. 579-628, 2014
George Mason Law & Economics Research Paper No. 13-57

Abstract:     
Federal environmental policy has long relied on the states to assist in the development and implementation of environmental regulations. Under this “cooperative federalism,” states not only administer federal rules but also receive flexibility in setting standards and enforcement priorities. In recent years, environmental advocacy groups have increasingly succeeded in using a faux litigation strategy to effectively trample the statutory regulatory framework and to shut out the states from important policy decisions. As explained below, this policy-making process - called “sue-and-settle” or “suit-and-settlement” - not only violates the statutory framework, but also leads to haphazard policy making that should violate the standards of any serious policy analyst.

Number of Pages in PDF File: 51

Keywords: administrative law, consent decrees, collusion, decentralization, Defenders of Wildlife v. Perciasepe, EME Homer City Generation, environment, Environmental Protection Agency, EPA, federal implementation plan, FRCP Rule 24, non-adversarial, reform, regulatory process, rulemaking, state intervention

JEL Classification: H11, H77, K23, K32, K41, L51, Q28

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Date posted: October 22, 2013 ; Last revised: June 15, 2014

Suggested Citation

Butler, Henry N. and Harris, Nathaniel J., Sue, Settle, and Shut Out the States: Destroying the Environmental Benefits of Cooperative Federalism (October 21, 2013). Harvard Journal of Law and Public Policy, Vol. 37, No. 2, pp. 579-628, 2014; George Mason Law & Economics Research Paper No. 13-57. Available at SSRN: http://ssrn.com/abstract=2343273 or http://dx.doi.org/10.2139/ssrn.2343273

Contact Information

Henry N. Butler (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8644 (Phone)
Nathaniel J. Harris
George Mason University - School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
United States Court of Appeals for the 10th Circuit
United States
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