Intervention in Public Law Litigation: The Environmental Paradigm (Environmental Paradigm) substantially enhances understanding of intervention in federal environmental disputes. These controversies are a critical type of modern civil lawsuit and perhaps constitute the quintessential form of public law litigation. Professor Peter Appel comprehensively reviews the lengthy history of the intervention mechanism, scrutinizes the substantial 1966 revision of Federal Rule of Civil Procedure 24, and closely examines the phenomenon of public law litigation and intervention in it.
Professor Appel finds that federal district court judges liberally grant requests to intervene in these cases, although he asserts that some legal scholars have criticized trial judges for narrowly applying intervention in environmental cases and for underestimating the contributions that intervention applicants can make to resolution of these lawsuits. Professor Appel's observations lead him to suggest that appellate and district courts rethink intervention in environmental litigation. Professor Appel urges that the courts of appeals, which now review district court intervention decisions de novo, instead use an abuse of discretion standard. Moreover, he suggests that district judges depart from trans-substantive application of Rule 24 and employ amicus curiae involvement as a substitute for intervention of right.
Professor Appel, thus, significantly advances the dialogue about public law cases and intervention in them and much that he states is undisputed. Nevertheless, certain aspects of his article are controversial; therefore, Environmental Paradigm warrants a response. This piece undertakes that effort. I essentially afford a friendly critique, which emphasizes several important ways that Professor Appel and I differ and suggests how Professor Appel's helpful analysis might be elaborated. My thesis is that we need a better understanding of the history, theory, policy, and practice of environmental litigation and of intervention in it. Until our comprehension of these matters is more refined, it will remain difficult to articulate with confidence the best prescriptions for the issues raised by intervention.
Carl Tobias, Rethinking Intervention in Environmental Litigation, 78 Wash. U. L. Q. 313 (2000)