Diminished Access to Judicial Review Is an Unacceptable Consequence of EPA’s Delegation of Its Responsibilities to States Article
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Recommended Citation
Jaclyn Lopez, Diminished Access to Judicial Review Is an Unacceptable Consequence of EPA’s Delegation of Its Responsibilities to States, 53 Envtl. L. 571 (2023)Clicking on the button will copy the full recommended citation.
The delegation of federal authority over national resources can, in theory, present conservation opportunities, but in fact has entrenched grave pitfalls. This Article explores a significant consequence of federal delegation that has received little serious consideration by courts, agencies, and scholarship: how the Environmental Protection Agency's delegation of federal bedrock environmental laws subverts Congress's intent to empower citizens to enforce these statutes when agencies will not. There are substantial differences between federal and state judicial review, specifically with respect to standing and fee shifting, which effectively limit which kinds of plaintiffs can challenge decisions that impact natural resources. This Article explores the regulatory
framework of delegation, and by focusing on the Environmental Protection Agency's recent delegation of 404 permitting to the state of Florida, provides a case study for how delegation can undermine Congress's intent to provide citizens access to judicial review. The analysis presented here, and the recommended remedies, may aid in identifying and addressing similar injustices in other state regulatory frameworks.