40 ELR 10268 ENVIRONMENTAL LAW REPORTER 3-2010
A R T I C L E S
Betty B. Fletcher:
NEPA’s Angel and
Chief Editor of
the Hard Look
by William H. Rodgers Jr.
William H. Rodgers Jr. is the Stimson Bullitt Professor of
Environmental Law, University of Washington School of Law.
e underpinnings of modern environmental law rest
comfortably on assumptions of a creative, active, thor-
ough, and demanding judicial review. e judicial
founders—and expounders—of environmental law
were relentless practitioners of what became known as
the “hard look” doctrine of judicial review. is was
the stance of the great rst judges of environmental
law—they included David Bazelon, Harold Leventhal,
and J. Skelly Wright—and this was the posture of those
who came later—including the much admired Patricia
Wald. is tradition of a meaningful hard look has been
carried on—and extended—by many contemporary
jurists, including Betty B. Fletcher of the U.S. Court
of Appeals for the Ninth Circuit. In this review of the
decisionmaking of Judge Fletcher, the environmental
version of the hard look is on conspicuous display. And it
stands in stark contrast to the “values” of lassitude, pas-
sivity, timidity, hesitation, and trusting acceptance that
pass for “judicial review” in the new world celebrated by
sorry precedents, such as .
As natural systems collapse around the world,1 as an
extinction crisis races into view,2 a s climate change
rushes to meet an exploding huma n population that
is completely unprepared for what will come,3 as the U.S.
Supreme Court’s environmental decisionmak ing goes from
bad to worse,4 it is time to identify the countervailing forces.
ere are some healthy ones.
I w ish to speak of one of the courts—in par ticular one
judge, on one court. e judge is Betty B. Fletcher, and t he
court is the U.S. Court of Appeals for the Ninth Circuit.
What a strange place to start, you might say. Courts a re
the “least dangerous branch”5 a nd the weakest phalanx in
the U.S. government ranks. But they retain a variable— and
occasionally potent—brew of social inuences, ranging from
spirited g uidance to bold example to inspirational preach-
ment to una rguable precedent. e U.S. environmental
movement burst into prominence with the support and lead-
ership of the U.S. judiciary,6 and it has staggered with the
withdrawal of that support. e Supreme Court’s 5-4 deci-
sion in 7 conrming the Clean Air Act’s
(CAA’s)8 utility in the climate change wars was met by a kind
of “throwing o the chains” celebration in the law journals,9
though the Supreme Court was soon back on its customar y
“none of our business” message.10 Elsewhere in the world, the
judicial role in the inuence of environmental thought and
the protection of natural assets is unmista kable and strong.11
I. Know Her by Her Enemies: The Voice of
at Betty Fletcher has become an environmental voice
worth silencing is illustrated by two somewhat strange
developments in her recent judicial ca reer. One is the yea rs-
long campaign of Sen. Orrin Hatch (R-Utah) to block the
appointment of Bett y Fletcher’s son, Willie Fletcher, to the
1. See T W I, 2009: S W: I W-
2. See W H. C, G F: H T C C 4
3. See J L, T R G: E’ C C
F H (2006).
4. See W H. R, J., of 1 E-
L: A W iii (Winter 2009).
5. See A B, T L D B: T S
C B P (1986).
6. See R L, T M E L (2004).
8. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
9. e decision was cited quickly in 234—perhaps 333—law review articles by
the end of the following year. Search for William H. Rodgers Jr., by Melia
Cossette, Intern Reference Librarian, Marian Gould Gallagher Law Library,
Univ. of Wash. (Oct. 12, 2008) (using the databases Shepard’s on LEXIS and
Westlaw Secondary Sources and Law Reviews).
10. Summers v. Earth Island Inst., 129 S. Ct. 1142, 39 ELR 20047 (2009); Winter
v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 39 ELR 20279 (2008).
11. See O H, T B E: E E C T
C W (2009).
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.