NEPA ADMINISTRATIVE APPEALS AND LITIGATION

• Jurisdiction: United States

National Environmental Policy Act
(Oct 2010)
CHAPTER 8B
NEPA ADMINISTRATIVE APPEALS AND LITIGATION
Michael Harris
Environmental Law Clinic
Sturm College of Law
Assistant Professor University of Denver
Denver, Colorado

MICHAEL HARRIS is Assistant Professor of Law and Director of the Environmental Law Clinic at the University of Denver Sturm College of Law. He received a B.A. in Environmental and Political Studies from Pitzer College in Claremont, California, a M.S.L. from Vermont Law School, and a J.D. from Boalt Hall School of Law at the University of California-Berkeley, where he was an Executive Editor for the Ecology Law Quarterly. Before coming to Denver, Professor Harris was a Visiting Assistant Professor at Vermont Law School, where he taught Air Pollution Law & Policy and Administrative Law. Professor Harris' career has focused exclusively on the practice of environmental law, much of it working directly on litigation to protect public health and natural resources. He has worked as a Senior Deputy District Counsel for the South Coast Air Quality Management District in Los Angeles, as an Associate Environmental Counsel for the Los Angeles Unified School District, and as a Project Attorney with Earthjustice in Denver, Colorado.

The Changing Nature of NEPA Litigation in the Tenth Circuit (and Beyond): The Lingering Legacy of Olenhouse v. Commodity Credit Corp.

NEPA Litigation Myth Buster

• Myth #1: NEPA litigation is the tool of "wild-eyed" left wing environmentalists:

• False

• Environmental groups - 45%

• Individual and citizen groups - 21%

• State & local governments - 10%

• Business groups - 12%

• Property owners/residents - 11%

• North American Tribes - 1%

[Page 8B-2]

• Myth #2: NEPA litigation is no longer effective

• FALSE

• 44 percent historical success rate.

• 59.2% success with Democrat-appointed judges.

• 28.4% success with Republican-appointed judges.

• Myth #3: NEPA litigation success depends on where you live

• True

[Page 8B-3]

Success Does Depend On Where You Live:

• Ninth Circuit (2005-2008)

• Lands Council v. Martin (W)

• ONBA v. BLM (W)

• CBD v. Rey (W)

• Trout Unlimited v. Lohn (W)

• ONRC Fund v. Brong (W)

• Geertson Seed v. Johanns (W)

• Great Basin Mine Watch v. Hankins (W)

• Center for Food Safety v. Johanns (W)

• EPIC v. US Forest Service (W)

• San Luis Obispo Mothers for Peace v. NRC (W)

• Tenth Circuit (2005-2008)

• Citizens' Committee to Save Our Canyons v. Krueger (L)

•...