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100 Geo. L.J. 1507 (2011-2012)
The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek behind the Curtains

handle is hein.journals/glj100 and id is 1525 raw text is: 

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 rul-
ings 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

  * Howard J. and Katherine W. Aibel Professor of Law, Harvard University. © 2012, Richard
Lazarus. This Article builds upon a lecture delivered at the Georgetown University Law Center in
February 2010 in celebration of my investiture there as the Justice William J. Brennan, Jr., Professor of
Law. Georgetown University Law Center students Lauren Adler and Van Smith and Harvard Law
School students Amanda Rice, Zach Gerson, Eric Nguyen, Ed Roggenkamp, Leslie Griffith, and
Brendan Selby provided outstanding research and editorial assistance in support of this Article's
preparation. I served as co-counsel in a few of the cases discussed in this Article, including as
co-counsel for the United States in Metropolitan Edison Co. v. People Against Nuclear Energy, 460
U.S. 766 (1983), and as co-counsel for respondents in Monsanto Co. v. Geertson Seed Farms, 130 S.
Ct. 2743 (2010).


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