NEPA's Insatiable Optimism

• Date: 01 July 2009

39 ELR 10618 EnviRonmEntaL Law REpoRtER 7-2009

NEPA’s 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).