Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases

50:2 Environmental Law. ___ (forthcoming 2020)

University of Utah College of Law Research Paper No. 326

47 Pages Posted: 7 Aug 2019 Last revised: 3 Oct 2019

See all articles by John Ruple

John Ruple

University of Utah, S.J. Quinney College of Law

Kayla Race

University of Utah - S.J. Quinney College of Law

Date Written: August 6, 2019

Abstract

We reviewed thirteen years of National Environmental Policy Act (“NEPA”) litigation data summarizing 1,499 federal court opinions to assess:

(1) How frequently NEPA compliance efforts result in litigation;

(2) how agency NEPA decisions fare in court; and

(3) how NEPA litigation outcomes compare to outcomes in other challenges to federal agency decisions.

We found that only one in 450 NEPA decisions were litigated and that the rate of NEPA challenges declined during the thirteen-year study period. We noted an inverse relationship between the amount of time spent on Environmental Impact Statement (“EIS”) preparation and the likelihood that an EIS would be challenged in court. We also found that while federal agencies prevail in NEPA litigation at slightly higher rates than in other civil cases where the government is a defendant, environmental plaintiffs win at higher rates than any other class of NEPA challengers. Overall, we conclude that the NEPA litigation burden may be overstated because few decisions are challenged in court, the rate of challenge is declining, and environmental plaintiffs are likely to bring only cases where they have a high likelihood of success. We therefore recommend against imposing strict deadlines and page limits on EISs as these “reforms” may do little to reduce the NEPA compliance burden while limiting opportunities for public engagement.

Suggested Citation

Ruple, John and Race, Kayla, Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases (August 6, 2019). 50:2 Environmental Law. ___ (forthcoming 2020); University of Utah College of Law Research Paper No. 326. Available at SSRN: https://ssrn.com/abstract=3433437 or http://dx.doi.org/10.2139/ssrn.3433437

John Ruple (Contact Author)

University of Utah, S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
801-581-6545 (Phone)

Kayla Race

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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