Volume 100 -- Issue 5 Georgetown Law Journal

The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains

The Supreme Court has decided seventeen cases arising under the National Environmental Policy Act (NEPA) and the government has not only won every case, but won almost all of them unanimously. Commentators routinely cite the drubbing that environmentalists have received in NEPA cases as evidence of the Court’s hostility toward environmental law and environmentalism. But a close look at the cases, extending beyond what appears in the U.S. Reports, suggests a very different and more nuanced story. First, as revealed by the written briefs and oral arguments of the advocates and by the internal deliberations of the Justices in those cases, the government’s “perfect record” came at a significant cost: the Solicitor General abandoned many lower court arguments and made major concessions about NEPA’s requirements. Consequently, the Court’s rulings frequently included language that favored environmentalists in future litigation. Indeed, in some instances, the NEPA plaintiffs won more than they lost. Second, the NEPA cases underscore the difference that skilled advocacy makes on either side of the lectern—by the advocates before the Court and by the Justices during the Court’s own internal deliberations. The significance of a Court opinion turns on the particular wording of its reasoning far more than on whether it ends with an “affirmed” or “reversed.” And the better advocates before and within the Court are exceedingly effective at shaping that reasoning. In NEPA cases, the Solicitor General has generally outlitigated NEPA plaintiffs, and, within the Court, no Justice was more influential than Justice, and later Chief Justice, William Rehnquist. NEPA’s story before the Supreme Court is, therefore, not a happy one for NEPA enthusiasts, but the story is not nearly as dismal as routinely supposed. The Justices may have been unappreciative of NEPA’s potential, but they have not been systematically hostile to its require- ments. To the extent, moreover, that NEPA precedent has been less rather than more favorable to NEPA plaintiffs, much of this is best explained by the Solicitor General’s comparative strategic and expertise advantage before the Court and Chief Justice Rehnquist’s heightened skills on the bench compared to those, like Justice William Douglas, who were more sympathetic to NEPA’s mandate.

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