Abstract
The Environmental Litigation Bond, passed by the Utah legislature in the 2011 general session, fails in two primary respects. First, although the statute was passed in direct response to project delays associated with litigation surrounding the Legacy Parkway project, because the Legacy Parkway litigation involved federal, not state permits, the Legacy Parkway litigation fell entirely outside the scope of the Environmental Litigation Bond and therefore would not have applied to the facts of the Legacy Parkway litigation, and could not have provided a remedy. Further, the Environmental Litigation Bond represents a solution to a problem that does not exist because the type of litigation it seeks to restrict is extremely rare in Utah. Second, the Environmental Litigation Bond has collateral, distorting, and potentially negative collateral consequences, both for citizens and for environmental agencies in the state. Its negative collateral consequences include multiple violations of both the U.S. and Utah Constitutions including: access to courts, equal protection, and separation of powers concerns. The Environmental Litigation Bond also has distorting impacts on federally delegated environmental regulations under the SMCRA in the state, violating DOGM’s federal delegation to enforce SMCRA in Utah, in addition to violating the citizen suit provisions identified in SMCRA § 520. As identified by the hypothetical Coal Hollow Mine permit appeal example, the Environmental Litigation Bond also results in potentially distorting outcomes during the administrative review of permits for surface coal mining operations in Utah. Finally, the Environmental Litigation Bond has a broad chilling effect on environmental litigation in Utah, and can be classified as SLAPP-legislation, since it essentially disincentivizes concerned citizens from seeking preliminary injunctions against projects requiring state environmental permits. For these reasons, the Environmental Litigation Bond should be challenged and invalidated in court. This would restore civility, order, and predictability to causes of action seeking temporary relief against projects requiring state environmental permits in Utah.
Recommended Citation
Nafz, Douglas
(2013)
"The Environmental Litigation Bond: An Illegal And Shortsighted Limitation on Environmental Litigation in Utah,"
Utah Law Review: Vol. 2013:
No.
3, Article 10.
Available at:
https://dc.law.utah.edu/ulr/vol2013/iss3/10