NEPA's Insatiable Optimism

Date01 July 2009
39 ELR 10618 EnviRonmEntaL Law REpoRtER 7-2009
NEPAs Insatiable Optimism
by William H. Rodgers Jr.
William H. Rodgers Jr. is the Stimson Bullitt Professor of Environmental Law, School of Law, University of Washington.
He thanks Anna Moritz, 2009 graduate, and Courtney Hudak, 2L, University of Washington, School of Law.
I. Introduction
Why does this middle-aged environmenta l law deserve
such a warm 40th bir thday party? e u sual reasons are
well known:
e National Environmental Policy Act ( NEPA)1 has an
elegant style. It is bold and sparse and trim. It comes close to
eloquence now and then.
It is well-targeted—a imed squarely at the agencies of the
United States. It is inviting, not punitive. It is tantalizing in
the prospects.
It is generously designed. It puts the burden of environ-
mental justi cation on the acting agency but then recruits
widely in its consultation and other arrangements to draw
others into the decision vortex.
It hits a number of appealing policy notes—good science,
public participation, government reform, and protection of
the environment.
NEPA received t he greatest of institutional compli-
ments—it was presaged,2 then it wa s widely copied. Adrian
Fischer, my law dean at Georgetown University in the ea rly
1970s, saw the immediate pertinence of this impact state-
ment approach to his work on disarmament negotiations. It
would clearly help, he mused, to know a bit about the Penta-
gon’s new weapons plans in a ny discussions to rid the world
of weapons.
NEPA copycats have popped up everywhere, and we
have to think of the response as the sincerest form of at-
tery: local laws, state laws, international laws, and of course,
Tribal Environmental Policy Acts (TEPAs).3 e powerful
1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
2. See K B B, B E D: T O  A
E L, -, ch. 2 (2009).
3. Compare Richard L. Revesz, Federalism and Environmental Regulation: A Public
Choice Analysis, 115 H. L. R. 553, 617-18 (2001) (32 states have some
form of impact assessment policy) with Noah D. Hall, Political Externalities,
Federalism, and a Proposal for an Interstate Environmental Impact Assessment
Policy, 32 H. E. L. R. 49, 84 (2008) (as do over “a hundred other
legal systems”). See also G M  ., P  
N E P, D  T E
P A—A C G  A I  A
N C (2001); W H. R J., E
L  I C §1:15 (2005) (with semi-annual pocket parts) [here-
inafter 2005 NEPA  I C]. See also id. §1:14(D) (NEPA and
the Indian Tribes).
Endangered Species Act (ESA)4 arrived in 1973 disguised
as just a nother NEPA.5 Newt Gingrich had his own NEPA
epiphany, stripped of the environmental business, of course,
and he called it an Unfunded Mandates Reform Act.6 NEPA
copycat it was.
NEPA is tough and durable. It has no friends on the U.S.
Supreme Court and is fast losing the few that it once had
on the court s of appeals, as the jurists selected by President
George W. Bush and Sen. Orrin Hatch (R-Utah) take up
their allocated space on the spectrum of public authority.
Measured by what should have been, the Supreme Court has
given us 15 consecutive misreadings of NEPA.7 e latest
three approach the pathological, if you care to consult Jus-
tice Clarenceomas’ complete misunderstanding of NEPA’s
role in supplementing agency mandates,8 Justice A ntonin
Scalia’s contrived twisting of the concept of continuing
action to undermine prospects of supplemental environmen-
tal impact statements (EISs) and enforcement of mitigation
commitments,9 and Chief Justice John Roberts’ starry-
eyed suspension of NEPA remedies because a few admirals
appeared in court.10
at NEPA has survived this pattern of sustained judi-
cial abuse ma kes it doubly deserving of a birthday party. I
4. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.
5. e key staer was Frank Potter, and his tactics are described in William H.
Rodgers Jr., e Most Creative Moments in the History of Environmental Law:
e Whos, 39 W L.J. 1, 6 n.34 (1992).
6. Pub. L. No. 104-4, 109 Stat. 48 (1995) (the “impact” victims here, of
course, are not natural treasures and wildlife, but downtrodden state and
local governments).
7.  NEPA  I C §1:17 at 456-57 (“e Supreme Court and
the Foul Fourteen”). ese decisions used to be known as the Dirty Dozen but
the total has risen now to a Flimsy Fifteen. See William H. Rodgers Jr., NEPA
at Twenty: Mimickry and Recruitment in Environmental Law, 20 E. L
485 (1990). See David C. Shilton, Is the Supreme Court Hostile to NEPA? Some
Possible Explanations for a 12-0 Record, 20 E. L. 551, 667 (1990) (not
hostility, but “respect for what Congress actually said in the statute and by a
realistic appreciation of the courts’ limited ability to oversee agency actions
that aect the environment”). Does “realism” still hold as the record climbs to
15:0 or 21:0 in the immediately foreseeable future?
8. U.S. Dep’t of Transportation v. Public Citizen, 541 U.S. 752, 34 ELR 20033
(2004) (9:0), which earns critical comment in William H. Rodgers Jr., e
Tenth U.S. Supreme Court Justice (Crazy Horse, J.) and Dissents Not Written
e Environmental Ter m of 2003-2004, 34 ELR 11033, 11034 (Dec. 2004).
9. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 34 ELR 20034
(2004) (another award-winner through the eyes of Crazy Horse, J., supra note
8, at 11033).
10. Winter v. Natural Resources Defense Council, 129 S. Ct. 365, 39 ELR 20279
(Nov. 8, 2008).

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