In recent years environmental groups have increasingly sought to influence public policy by bringing lawsuits against federal agencies and then offering settlement agreements. These “sue-and-settle” tactics are concerning because it allows ideologically driven organizations to hold private negotiations with federal agencies and to then influence public policy decisions. NFIB Legal Center is concerned that small businesses will often be impacted by such privately negociated policy decisions.
In Defenders of Wildlife v. EPA, environmentalists filed suit against the Environmental Protection Agency (EPA) and immediately offered a settlement agreement, which would bind the EPA to a schedule for promulgating electric effluent limitation guidelines. Since this would impact the electric utilities industry, the Utility Water Act Group (UWAG) sought to intervene to oppose the terms of the settlement. Despite the fact that the Federal Rules of Civil Procedure require only that an intervener have an interest in the case, the District Court denied UWAG’s motion for intervention. The Court held that UWAG needed to demonstrate that it had suffered an actual injury before it could be allowed to intervene.
On appeal, the NFIB Legal Center joined with the National Association of Home Builders in filing an amicus brief in support of UWAG. We urged the D.C. Circuit Court of Appeal to hold that the District Court erred in denying the motion to intervene. We argued that the D.C. Circuit should side with the majority of other federal circuits in rejecting any heightened requirement beyond what the Federal Rules of Civil Procedure require. Furthermore, we explained that the court would benefit from intervention in this case because UWAG could offer important perspective from the regulated community on the impact of settlement.
Status: Pending - D.C. Circuit Court of Appeal.