Deadline Citizen Suits: An Idea Whose Time Has Expired

This study was originally published at the Applachian Natural Resources Law Journal.
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Two statutory devices — deadlines and agency-forcing suits — were introduced in the Clean Air Act of 1970 in order to mitigate a perceived problem of agency capture and its corollary, nonparticipation by the public in the regulatory proceedings. Yet the Congress, for reasons inherent to the psychology of legislating, established too many deadlines. The paradoxical consequence of the Congress gorging on date-certain duties is that these two legislative mechanisms currently are achieving the opposite of what they were intended to do. Instead of warding off special interest capture, they’ve engendered capture by different special interests. And instead of eliciting participation, they’ve inhibited public input into EPA’s setting of priorities. In order to alleviate these inimical impacts, this paper recommends certain judicial and legislative means.