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Trashing the Presumption: Intervention on the Side of the Government

 

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Abstract

Rule 24 of the Federal Rules of Civil Procedure allows anyone with a legally protectable interest facing impairment to intervene in existing litigation as a matter of right, subject to whether existing parties in the litigation adequately represent the proposed intervenor’s interest. When an existing party is a governmental body, there is a further presumption, based on the common law doctrine of parens patriae, that the governmental entity adequately represents the interests of all its citizens.

This Comment examines the history of intervention as a matter of right and application of the presumption of adequacy of representation, with a focus on environmental groups petitioning to intervene on the side of the federal government. History shows that extension of the parens patriae doctrine to the modern federal administrative state is based upon weak precedent, and unfairly biased against environmental groups representing noneconomic interests. Federal circuits apply the presumption inconsistently, varying by court and by time based upon underlying political forces influencing federal policy.

This Comment argues that by abandoning the presumption of adequate representation in favor of the “minimal burden” standard first articulated by the United States Supreme Court in Trbovich v. United Mine Workers of America, both environmental groups as well as business interests will benefit from improved consistency and fairness when petitioning to protect their interests. 

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