The Use of Masters in Environmental Litigation

By Todd H. Votteler and Joe G. Moore, Jr.

The “downsizing” of American government is a clear trend in public policy. Already, federal environmental agencies have significantly smaller staffs and fewer resources. However, few federal statutes have been systematically altered to accommodate the reduced resources of government agencies and address the complexity of environmental litigation. A major overhaul of environmental statutes to reflect a more limited federal role in enforcement or a shift in responsibility for environmental protection to either the states, other levels of government, or the private sector appears unlikely because the public’s expectations for improving environmental quality remain high. Thus, the laws in effect are unlikely to be aggressively enforced. Although state government is extolled as the most efficient vehicle for environmental protection, in the past it often has been either unable or unwilling to fulfill this role. Because the downsizing trend is also occurring in state government, it is unlikely to fill any void left by the federal government.

Downsizing will have at least two significant results. First, ignoring environmental problems will return the nation to the practice of responding to environmental “train wrecks.” Second, the absence of a strong federal role in implementing environmental policy will lead to increasing reliance on the citizen suit provisions of federal environmental statutes for selective and piecemeal environmental litigation and management. These assertions take into consideration the market solutions successfully used by the private sector for environmental protection; however, market; solutions cannot resolve every situation. A system characterized by powerful environmental litigation and statutes and a lack of governmental will or capacity to enforce them will compel aggrieved parties to seek approaches beyond traditional government regulation.

With the growth of increasingly complex environmental litigation issues and declining state and federal government resources for enforcement, environmental disputes will gravitate to the courts in ever-increasing numbers. As the forum of last resort, courts are forced to assume some of the functions usually reserved for administrative agencies. However, the judicial system is also experiencing a reduction in resources. In June 1996, the Administrative Office of the U.S. Courts reported that there were twenty-six vacancies on the U.S. Court of Appeals and seventy vacancies in the U.S. District  Courts.  Telephone interview with Karen Redmond,  Administrative  Office of the U.S. Courts (June 10, 1997).Judicial vacancies will impede the ability of courts to absorb the additional workload, thus the need for court-appointed  experts, often designated “masters.” Depending on the assignment, they can also be called special masters, monitors, or other titles at the court’s discretion. Among the most compelling reasons for a court’s needing the help of a master are the following: (1) the workload of the court does not allow sufficient time for it to directly manage its orders or judgments (the court’s time has to be divided among implementing complex environmental judgments, maintaining its usual caseload, and overseeing other complex cases); (2) inaction by state or federal agencies compels the court to supervise agencies or directly oversee actions of defendants to ensure compliance with its judgments, pursuant to the law (the court can use experts as a source of unbiased information or to perform administrative functions for the court); and (3) the expertise required in some litigation is often beyond the normal experience of the court (courts do not specialize in environmental litigation and the issues being brought to court are increasingly complex).

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