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Intervention in Public Law Litigation: the Environmental Paradigm Washington University Law Review Volume 78 Issue 1 January 2000 Intervention in Public Law Litigation: The Environmental Paradigm Peter A. Appel University of Georgia School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Environmental Law Commons, Litigation Commons, and the Public Law and Legal Theory Commons Recommended Citation Peter A. Appel, Intervention in Public Law Litigation: The Environmental Paradigm, 78 WASH. U. L. Q. 215 (2000). Available at: https://openscholarship.wustl.edu/law_lawreview/vol78/iss1/4 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. INTERVENTION IN PUBLIC LAW LITIGATION: THE ENVIRONMENTAL PARADIGM PETER A. APPEL* Since the time that the late Abram Chayes coined the term “public law litigation” in his landmark Harvard Law Review article, commentators have analyzed federal court cases aimed at reforming public institutions under Chayes’s theoretical description1 rather than the more traditional view of civil litigation.2 Although Chayes first coined the descriptive phrase in 1976, the phenomenon of lawsuits aimed at institutional reform and the remedial devices used to effect that reform had existed for many years, as Chayes himself recognized.3 Moreover, the phenomenon that Chayes dubbed “public law litigation” and the general subject of public interest litigation had numerous intellectual antecedents in description and analysis before Chayes wrote his article.4 Nevertheless, Chayes’s term has stuck, and analysts of public law litigation use his work as their usual starting point.5 Litigation which Chayes labeled “public law litigation” grew especially quickly in the decade immediately before Chayes wrote his article. This growth was due, in no small part, to the 1966 amendments to the Federal Rules of Civil Procedure.6 These amendments introduced a more * Assistant Professor, University of Georgia School of Law. B.A., J.D. Yale University. I formerly served as an attorney in the Appellate Section of the Environment and Natural Resources Division, United States Department of Justice, and the ideas in this article stem from ideas that occurred to me in the course of cases I litigated. For whatever interest it may have for the reader, I have identified those cases in which I served as the primary counsel for the federal government on appeal. I would like to thank the following people for their generous help and suggestions: Robert D. Brussack, Dan Coenen, C. Ronald Ellington, Charles R.T. O’Kelley, Margaret V. Sachs, James Smith, Jay Tidmarsh, Carl Tobias, Alan Watson, Camilla Watson, Rebecca White, and, of course, Christine Albright. All errors that remain are, of course, my own. I dedicate this article to my parents. 1. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976). 2. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978). Fuller’s article was a posthumous publication of an essay first written in 1957. See id. at 353. 3. See Theodore Eisenberg & Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 HARV. L. REV. 465, 481-86 (1980); see also Chayes, supra note 1, at 1288 (dating origins of public law litigation to approximately 1875). 4. See, e.g., Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968). 5. For a thoughtful consideration of Chayes’s article and its impact, see Richard L. Marcus, Public Law Litigation and Legal Scholarship, 21 U. MICH. J.L. REFORM 647 (1988). The most impressive, albeit most crude, measure of the article’s impact is that in 1996 it was the sixth most- frequently-cited law review article in other law review articles. See Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 CHI.-KENT L. REV 751, 766 (1996). 6. See Amendments to Rules of Civil Procedure for the United States District Courts, 383 U.S. 1029 (1966). 215 Washington University Open Scholarship p215 Appel.doc 09/15/00 4:55 PM 216 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 78:215 transactional approach to litigation and made the rules concerning party structure more flexible. In particular, the amendments modified Rule 19, which governs joinder of nonparties by the parties to the suit;7 Rule 23, which governs class action lawsuits;8 and Rule 24, which governs intervention by nonparties into ongoing litigation.9 According to the major proponents of public law litigation, making party structure more flexible should encourage public law litigation to flourish. The 1966 amendments would have had this effect, proponents assert, were it not for resistance of the bench to public law litigation. In particular, the proponents of public law litigation contend that judges have excluded parties that should be included in the litigation by denying intervention to outsiders. According to the standard argument, the absence of these intervening parties has had two negative effects. First, it has limited the ability of the court to receive the useful information supplied by outsiders and to structure appropriate remedies. Second, it has injured the absentees.10 7. FED. R. CIV. P. 19. 8. FED. R. CIV. P. 23. 9. FED. R. CIV. P. 24. 10. For the standard account that courts have been unduly and unwisely unreceptive to proposed intervenors, see, for example, Alan Jenkins, Foxes Guarding the Chicken Coop: Intervention as of Right and the Defense of Civil Rights Remedies, 4 MICH. J. RACE & L. 263 (1999); Emma Coleman Jones, Litigation Without Representation: The Need for Intervention to Affirm Affirmative Action, 14 HARV. C.R.-C.L. L. REV. 31 (1979) [hereinafter Jones, Litigation Without Representation]; Emma Coleman Jones, Problems and Prospects of Participation in Affirmative Action Litigation: A Role for Intervenors, 13 U.C. DAVIS L. REV. 221 (1980) [hereinafter Jones, Problems and Prospects]; Carl Tobias, Public Law Litigation and the Federal Rules of Civil Procedure, 74 CORNELL L. REV. 270, 322-28 (1989) [hereinafter Tobias, Public Law Litigation]; Carl Tobias, Standing to Intervene, 1991 WIS. L. REV. 415 [hereinafter Tobias, Standing to Intervene]; Ellyn J. Bullock, Note, Acid Rain Falls on the Just and the Unjust: Why Standing’s Criteria Should Not Be Incorporated into Intervention of Right, 1990 U. ILL. L. REV. 605; Joshua C. Dickinson, Casenote, Standing Requirements for Intervention and the Doctrine of Legislative Standing: Will the Eighth Circuit “Stand” by its Mistakes in Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. v. Ehlmann, 32 CREIGHTON L. REV. 983 (1999); Brian Hutchings, Note, Waiting for Divine Intervention: The Fifth Circuit Tries to Give Meaning to Intervention Rules in Sierra Club v. City of San Antonio, 43 VILL. L. REV. 693 (1998); Cindy Vreeland, Comment, Public Interest Groups, Public Law Litigation, and Federal Rule 24(a), 57 U. CHI. L. REV. 279 (1990); see also Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 288 (1990). Academic commentary questioning this argument is rare, but it exists. See, e.g., Jack H. Friedenthal, Increased Participation by Non-Parties: The Need for Limitations and Conditions, 13 U.C. DAVIS L. REV. 259 (1980); Rodrick J. Coffey, Note, Giving a Hoot About an Owl Does Not Satisfy the Interest Requirement for Intervention: The Misapplication of Intervention as of Right in Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Department of the Interior, 1998 B.Y.U. L. REV. 811 (1998). For commentary taking an intermediate position, see Stephen C. Yeazell, Intervention and the Idea of Litigation: A Commentary on the Los Angeles School Case, 25 UCLA L. REV. 244, 244 (1977) (“It is my thesis that such an expansion of intervention doctrines can be useful if the courts recognize that the participation of additional parties under these circumstances is serving special functions.”); Ernest E. Shaver, Note, Intervention in the Public Interest Under Rule 24(a)(2) of the Federal Rules of Civil Procedure, 45 WASH. & LEE L. REV. 1549, https://openscholarship.wustl.edu/law_lawreview/vol78/iss1/4 p215 Appel.doc 09/15/00 4:55 PM 2000] INTERVENTION IN PUBLIC LAW LITIGATION 217 Using the jurisprudence that has developed concerning intervention as of right under Rule 24(a),11 this article questions these two assertions. First, courts have been receptive to amorphous party structure in public law cases, allowing intervention in many instances where it would not have been allowed before the 1966 amendments to the Federal Rules of Civil Procedure. Even with more recent limitations on intervention as of right by some courts of appeals—in particular, requiring applicants for intervention to demonstrate that they possess constitutional standing to sue—most federal courts permit the flexible party structure called for by public law litigation advocates. Second, it is far from clear in many instances how allowing intervention assists the litigation, particularly when the outsider has intervened as a defendant. Rather, in many instances the parties and the judge can realize the advantages of involving an outsider to the litigation without formal intervention as of right. Thus, contrary to the arguments of most scholars in this area, I believe that the courts have, for the most part, decided the cases correctly, and have certainly allowed intervention in more cases than they would have prior to the 1966 amendments. These conclusions stem in part from analysis of a form of public law litigation frequently overlooked or inadequately analyzed in the standard literature, namely environmental and natural resources litigation. The underanalyzed characteristics of this litigation undermine the general arguments about the value of intervention in all public law litigation.
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