Arbitrary and Capricious: the Dark Canon of the United States Supreme Court in Environmental Law

Arbitrary and Capricious: The Dark Canon of the

United States Supreme Court in Environmental Law

OLIVER A. HOUCK*

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

I. Methow Valley: The Neutering of NEPA . . . . . . . . . . . . . . . . . . . . . . . . 53

A. NEPA, Congress, and the Question of Substance . . . . . . . . . . . . . . 55

B. NEPA and the Courts: The Road to Methow Valley . . . . . . . . . . . . 59

C. Methow Valley: Dicta Becomes Dogma. . . . . . . . . . . . . . . . . . . . . 64

D. Methow’s Wake. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

II. Lujan: The Weaponization of Standing . . . . . . . . . . . . . . . . . . . . . . . . . 70

A. Environmental Standing Begins . . . . . . . . . . . . . . . . . . . . . . . . . . 72

B. Justice Scalia and Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

C. Lujan v. National Wildlife Federation . . . . . . . . . . . . . . . . . . . . . . 77

D. Lujan v. Defenders of Wildlife . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

E. Beyond the Lujans .................................... 85

F. Standing on the Wrong Foot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

III. Vermont Yankee: The Adoration of the Atom . . . . . . . . . . . . . . . . . . . . . 94

A. The Enterprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

B. Two Lawsuits in One . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

C. The Supreme Court Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

D. The Court Rules Again. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

E. Fallout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Ref‌lections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

INTRODUCTION

“In no other political or social movement has litigation played such an impor-

tant and dominant role. Not even close.”

David Sive

1

At the dawn of modern environmental law, the Supreme Court played a signif‌i-

cant role with decisions that stimulated new programs and aff‌irmed those just

* Professor of Law and David Boies Chair in Public Interest Law, Tulane University. © 2020, Oliver

Houck. For further reference see www.oliverhouck.com.

1. Tom Turner, The Legal Eagles, THE AMICUS JOURNAL, Winter 1988 at 25, 27. Professor Sive,

Senior Partner of a New York City law f‌irm, represented plaintiffs in several administrative and

environmental cases, including Scenic Hudson Pres. Conference v Fed. Power Comm’n, 354 F.2d. 608

(2d Cir. 1965).

51

under way, giving deference to what Congress had intended and done.

2

It was not

to last. By the end of the 1970’s, the Court was turning unmistakably hostile, cre-

ating a canon of jurisprudence that was not only negative but marked by question-

able reasoning, mischaracterization of fact and law, and an evident bias against

environmental programs and those who argued in their favor. The days of support

or even fair consideration were over and, for some programs, had never arrived.

The Court’s 0 – 17 record on the National Environmental Policy Act alone speaks

for itself.

3

Each of these cases had been decided otherwise by an appellate panel

below, all responsible adults. One has better odds in Las Vegas.

Understandably, my students tend to accept these opinions as gospel; this is, af-

ter all, the Court speaking. They should not, but the reasons they should not are

often not obvious. When I have asked them as an assignment to appeal the opin-

ions to the Galactic Supreme Court, few did it well. Putting myself to the same

task I realized that the problem did not rest with a few isolated cases, but rather in

an entire body of law that had been building for the past 40 years. It seems time to

call it to account.

With the assistance of colleagues, I have selected twelve Supreme Court deci-

sions, using as criteria their use of fact and precedent, reasoning, and impact.

This article begins the accounting with three such cases—each a chain of cases,

really—that have had indelible consequences. The f‌irst, Robertson v Methow

Valley Citizens Association,

4

reduced NEPA to a ritual, and the second,

2. Early curtain raisers include United States v. Republic Steel Corp., 362 U.S. 482 (1960); United

States v. Standard Oil Co., 386 U.S. 224 (1966) (extending the Refuse Act of 1899 to pollution

discharges and prompting Congress to enact the Clean Water Act); 2: E.I. du Pont de Nemours v. Train,

430 U.S. 112 (1977) (ratifying an EPA standard-setting process that, although not in strict conformity

with the statute, was found rational and in keeping with congressional goals); Union Elec. Co. v. E.P.A.,

427 U.S. 246 (1976) (rejecting consideration of economic and technological feasibility in EPA

approvals of state clean air plans); Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), aff’d,

(D.C. Cir. Nov. 1, 1972) (aff‌irming an EPA-created requirement that became the Prevention of

Signif‌icant Deterioration Program); Tenn. Valley Auth. v Hill, 437 U.S. 153 (1978) (empowering the

newly-minted Endangered Species Act); Citizens to Preserve Overton Park, 401 U.S. 402 (1971)

(rigorously construing Section 4(f) of the Department of Transportation Act); and Sierra Club v.

Morton, 405 U.S. 727 (1972) (opening the door for citizen standing to challenge government

compliance with these and other laws). Notably, however, these opinions came early on with the

majority justices nearing retirement; it is unlikely they would be so decided today. See Oliver A. Houck,

The Secret Opinions of the United States Supreme Court on Leading Cases in Environmental Law,

Never Before Published, 69 COLO. L. REV. 459 (1994). This Article is about what transpired instead.

3. See Richard Lazarus, The National Environmental Policy Act in the U.S. Supreme Court: A

Reappraisal and a Peek Behind the Curtains, 100 GEO. L.J. 1507, 1510 (2012). Indeed, the author notes,

until environment plaintiffs lost a case in 2008, “they had not received a single vote in their favor [on the

merits] for more than thirty years. . . .” Id. at 1510–11. “I doubt”, Professor Lazarus concludes, “there is

any other f‌ield of law in which the Court has been so repeatedly and unanimously opposed to the

arguments advanced by one set of parties.” Id. at 1524.

4. 490 U.S. 332 (1989).

52 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 33:51

Lujan v Defenders of Wildlife,

5

led an all-out assault on citizen standing that has

limited enforcement across the f‌ield. The third, Vermont Yankee Nuclear Power

Corp. v Natural Resources Defense Council Inc.,

6

capped a string of opinions

placing atomic power on a pedestal above safety and environmental law.

At the end of this article, we may ref‌lect on why the Court has taken such a

turn, but beforehand it is necessary to appreciate how far it has jumped the rails

of reasonableness and sound jurisprudence. It will be a journey.

I. METHOW VALLEY: THE NEUTERING OF NEPA

“Quality of life is a factor not easily measured or captured in words, and yet

the human feelings involved are of the utmost importance. For the people of the

Methaw [sic] it is evinced in the atmosphere of intimacy and trust that exist [sic]

here . . . in the peace of mind that the quiet of the valley encourages, in the pri-

vacy, in the freedom of movement amid the open, [sic] spaces. . . .”

Methow Valley Plan, addendum to the Okanagan County Comprehensive Plan

(1976).

7

Nothing about Methow Valley signaled where it would go and what it would do.

8

In 1978, a newly-formed corporation applied to the US Forest Service for a permit

to build a “destination” ski resort on public lands above Methow Valley, a remote

corner of northern Washington described by reviewing courts as “pristine[.]”

9

It

seemed an ideal location for such an enterprise. Not everyone agreed, however, and

when the ensuing litigation reached the Supreme Court, the Court would issue an

opinion from which NEPA,

10

the seminal environmental program in America, may

never recover.

The opening lines of a judicial decision often signal its outcome. The Court’s

opinion here begins by describing the Forest Service’s promotion of commercial

ski areas as an impressive enterprise with some “170 Alpine and Nordic” projects

at the time of writing.

11

Indeed, it had identif‌ied the Methow site as having the

“highest potential” of any in the state for a “major downhill resort. . . .”

12

The ski

slopes would contain sixteen separate lifts and accommodate up to 10,000 skiers

at a time.

13

The resort itself would occupy just under 4,000 acres of the Okanogan

5. 504 U.S. 555 (1992).

6. 435 U.S. 519 (1978).

7. METHOW VALLEY PLAN, AN ADDENDUM TO OKANOGAN COUNTY’S COMPREHENSIVE PLAN §1 p.7

(1976), cited in Brief for Respondent at 1, Methow Valley Citizens Ass’n, at 332.

8. Methow Valley Citizen’s Ass’n, 490 U.S. at 332.

9. Id. at 337.

10. Congressional Declaration of Purpose, 42 U.S.C. § 4321 et seq (2012).

11. Methow Valley Citizen’s Ass’n, 490 U.S. at 336.

12. Id. at 337.

13. Id. at 339. The project scale was subsequently modif‌ied to accommodate 8,200 skiers at a time.

Brief for Petitioners at 11, Methow Valley Citizens Ass’n, 490 U.S. 332 (1989). By way of contrast the

entire Valley, eighty miles long, held 3,900 residents in 1984, see Brief for the Respondent, supra note

2020] ARBITRARY AND CAPRICOUS 53