by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
An interesting case in Tennessee focuses on Congress delegating its legislative power to others — for decades. Not just to executive branch agencies, but in some situations to anyone at all. In Tennessee Riverkeeper v. City of Luttrell, an environmental group from another state (Alabama) sued the tiny town of Lutrell, population 1,000, over its wastewater treatment facility. Neither the federal EPA nor state environmental regulators had any problem with Luttrell. But in the Clean Water Act of 1972, Congress explicitly authorized “citizen suits,” whereby anyone can file suit to enforce the law.
Luttrell, the boyhood home of Chet Atkins, fought back, asking the U.S. Supreme Court to decide whether Congress has any right to delegate enforcement power to anybody in the country. That Alabama group has filed over two dozen similar suits, making a good living by suing, settling, and cashing in. The targets are easy, because Congress specifically authorized citizen suits to enforce the Clean Air Act, Clean Water Act, Endangered Species Act, and other environmental laws.
Numerous agencies have followed Congress’ lead, naming outside groups as official “stakeholders” in federal decision-making — often groups who have no identifiable “stake” in the process. Nor is the practice unique to government. It happens in business, too.
Some years ago, when Texas power giant TXU announced plans for 11 new coal-fired power plants, it was immediately sued by two environmental industry groups. The groups launched a website, StopTXU.com, published electronic newsletters and built a national constituency for the cause. It paid off. Two massive investment firms collaborated on the largest leveraged buyout in history up to that time ($45 billion), but only on the condition that the two environmental groups approved the deal. The buyers would not risk the investment with unpopular proposals and lawsuits hanging over it. The resulting plan cut new power plants from 11 to 3. The company agreed to spend $400 million on energy-efficiency programs, double its purchase of wind power, and support a U.S. greenhouse gas emission cap. Thus, two groups without a dime at stake sat at the table on Wall Street dictating details of the largest deal of its kind in business history.
