Betty B. Fletcher: NEPA's Angel and Chief Editor of the Hard Look

• Date: 01 March 2010

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 inuences, 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 conrming 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 inuence of environmental thought and

the protection of natural assets is unmista kable and strong.11

I. Know Her by Her Enemies: The Voice of

Environmental Law

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-

 W (2009).

2. See W H. C, G F: H  T C C 4

(2008).

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).

7. 549 U.S. 497, 37 ELR 20075 (2007).

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).

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