The Overlooked Role of the National Environmental Policy Act in Protecting the Western Environment: NEPA and the Ninth Circuit

Abstract:     
Critics widely disparage the National Environmental Policy Act (NEPA) for being a mere “paper tiger” or bureaucratic red-tape. The U.S. Supreme Court has surely encouraged this perception by treating the statute with consistent hostility, reducing it to a requirement only to follow prescribed administrative procedures but not produce any environmental results. But in the Ninth Circuit, NEPA lives a more important life, since that court has not forgotten NEPA’s essential environmental purpose. This article examines four lines of cases in the Ninth Circuit that may show that NEPA’s future might reflect its conservation purpose. These cases 1) deny NEPA plaintiffs with economic motives standing, 2) exempt from NEPA analysis designations of critical habitat under the Endangered Species Act because they have no physical effect on the environment, 3) reduce the threshold for when NEPA requires preparation of an environmental impact statement (EIS) by requiring environmental plaintiffs to raise only “substantial questions” about whether the agency proposal may produce significant environmental effects, and 4) accept a relaxed scope of alternatives in EISs on agency proposals that have a conservation purpose. We maintain that if other circuits adopted these four Ninth Circuit rules, NEPA would achieve some measure of the environmental protection purpose that Congress envisioned four decades ago.

Number of Pages in PDF File: 43

Keywords: environmental law, administrative law, natural resources law, judicial review, NEPA

JEL Classification: K23, K32, O20, Q28, Q38, Q48

Accepted Paper Series