NEPA in the Supreme Court: A history of defeat

Abstract

Green, Zachary C. Master of Environmental Assessment. NEPA in the Supreme Court: a history of defeat. Since its enactment in 1970, the National Environmental Policy Act (NEPA) has been the focus of seventeen Supreme Court cases. Government and industry have defeated environmental organizations in each of those seventeen cases. This begs the question “what does it take to defeat government/industry in the Supreme Court” on issues applicable to the Act. An analysis of the seventeen cases shows that the Supreme Court, relying only on the procedural aspects of NEPA, has favored government and industry due to government and industry’s success at following procedures. The focus on the procedural mandate of the Act has diminished the substantive mandate into an afterthought. The crux of NEPA litigation revolves around the preparation of an Environmental Impact Statement (EIS), yet the results of that statement are only meant to inform, not dictate, an agency’s decision to pursue an action. This focus essentially leaves agencies unaccountable for upholding the substantive element of NEPA and could undermine the Act’s intent, allowing negative environmental consequences and limiting NEPA’s full potential. Over time, the focal point of each case involved more and more intricate procedural requirements. This highlights government and industry effectiveness in following the steps of NEPA and suggests environmental organizations must rely more heavily on litigation involving the most technical procedural requirements in an effort to defeat government and industry at the Supreme Court level.