Pluralism and the Environment: The Role of Comment Agencies in Nepa Litigation

34 Pages Posted: 13 Dec 2005

See all articles by Michael C. Blumm

Michael C. Blumm

Lewis & Clark Law School

Stephen Brown

Garlington, Lohn & Robinson PLLP

Abstract

Judicial interpretation of the National Environmental Policy Act (NEPA)in the aggregate has prompted widespread confusion, as some analysts have alleged that NEPA is a "paper tiger;" others have claimed that the statute amounts to a "procedural straightjacket." NEPA's opaque language and its process-oriented provisions seem to give courts license to subject agency environmental documents to either the hardest of looks or the softest of glances. As a result, many critics have alleged that NEPA litigation is completely unpredictable, a function of the caprice of the reviewing judges.

This article challenges the notion that NEPA is unpredictable by relating the comments of environmental and natural resources agencies to the outcomes of NEPA litigation. The results of numerous case studies the article examines show a close correlation to the views of agencies with expertise and the courts' views of NEPA compliance. When environmental comment agencies raised serious concerns, courts were much more likely to conclude that the action agency violated NEPA. On the other hand, when environmental comment agencies approved agency proposals, courts were quite likely to find NEPA compliance.

Although there were some exceptional cases that did not conform to the model suggested above, we maintain that the study demonstrated that comments by agencies with environmental expertise have had a profound effect on the outcome of NEPA litigation, an outcome that is wholly consistent with NEPA's goal of elevating the role of agencies with environmental expertise in governmental decisionmaking. Among other lessons, the study suggests that members of the public with an interest influencing the outcome of agency proposals subject to NEPA should focus their attention on encouraging comments from agencies with environmental expertise which share their perspective.

Keywords: environmental law, administrative law

JEL Classification: K32, O21, O22, Q28

Suggested Citation

Blumm, Michael C. and Brown, Stephen, Pluralism and the Environment: The Role of Comment Agencies in Nepa Litigation. Harvard Environmental Law Review, Vol. 14, pp. 277-310, 1990. Available at SSRN: https://ssrn.com/abstract=869492

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

Stephen Brown

Garlington, Lohn & Robinson PLLP ( email )

PO BOX 7909
350 Ryman Street
Missoula, MN 59807-7909
United States

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