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
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, Q28Accepted Paper Series
Date posted: October 22, 2013 ; Last revised: June 15, 2014
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