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

51 Pages Posted: 22 Oct 2013 Last revised: 15 Jun 2014

See all articles by Henry N. Butler

Henry N. Butler

George Mason University - Antonin Scalia Law School, Faculty

Nathaniel Harris

George Mason University, Antonin Scalia Law School, Students/Alumni; United States Court of Appeals for the 10th Circuit

Date Written: October 21, 2013

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.

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

Suggested Citation

Butler, Henry N. and Harris, Nathaniel, 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: https://ssrn.com/abstract=2343273 or http://dx.doi.org/10.2139/ssrn.2343273

Henry N. Butler (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8644 (Phone)

Nathaniel Harris

George Mason University, Antonin Scalia Law School, Students/Alumni ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

United States Court of Appeals for the 10th Circuit

United States

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