Working Paper No. 13-57:
Sue, Settle, and Shut Out the States: Destroying the Environmental Benefits of Cooperative Federalism
Henry Butler, Nathaniel Harris
Date Posted: October 2013
Abstract (below) | Full text (most recent) on SSRN
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.