A state legislature may pass a law and the federal government still refuse it — over who bears the costs of litigation
The Office of Surface Mining Reclamation and Enforcement denied an amendment Montana submitted following passage of a state law. Making a losing party bear court costs was found inconsistent with a federal approach designed not to deter citizen suits.
Document overview (primary data)
- Document typeRule
- AgencyDepartment of the Interior
- Citation91 FR 54803
Key points
- The Office of Surface Mining Reclamation and Enforcement denied an amendment to the Montana regulatory program.
- The amendment followed a state law and would have required court costs to be applied equally to the prevailing party.
- The office found the provision inconsistent with the federal statute and regulations.
- Federal law limits cost bearing to cases of bad faith so that citizens are not deterred from bringing suit.
- A legislature passing a law does not by itself place its content into the federally approved regulatory program.
1The state carries it, the federal government approves it
Surface mining regulation runs on states holding their own regulatory programs and the federal government approving them, with the state then carrying enforcement on the ground. This site covers the same structure in the air quality field, showing a design of state authorship and federal approval used across several areas.
- 1The legislature passes a lawThe Montana Legislature enacts a bill
- 2The state submits an amendmentThe state submits its content as a program amendment on its own initiative
- 3The federal government reviewsWhether the proposal is consistent with federal statute and regulations
- 4The outcome hereFound inconsistent, and the amendment is denied
The point to hold is that a legislature passing a law does not by itself make that law part of the federally approved regulatory program. Where the federal government denies it, the content does not enter the program. The state law is not thereby void, but it does not become part of what has been approved.
2What was proposed
The proposal would require, in contested case proceedings, that court costs be applied equally to the prevailing party — in effect importing the idea that a losing party pays the other side costs. As a general principle of civil litigation the notion is unremarkable, but other considerations bear on this field.
3Why it was found inconsistent
By the office account, federal law limits cost bearing to cases where bad faith is found, so that citizens are not deterred from bringing suit. The proposed provision would expose any losing party to costs whatever the circumstances, extending liability beyond bad faith. Where people hold back from suing for fear of costs, the participation the regime contemplates is lost.
4Choosing denial
Whether a federal reviewer approves, partially approves or denies a state submission turns on whether the content meets the statutory requirements. This site covers an air quality case ending in partial approval and partial disapproval, showing that the relation between state and federal government is not uniform. Even an amendment a state submitted on its own initiative is denied where it exceeds the federal frame.
Why it matters
Under a design of state authorship and federal approval, state legislation alone does not change the content of regulation. How litigation costs are allocated bearing on the volume of public participation is a general lesson in institutional design.
FAQ
Does a state law enter the regulatory program once passed?
Why were the cost provisions a problem?
Sources (primary)
Source: Federal Register (federal documents, public domain). Links go to the official site.