An Environmental Conversation

Federal environmental law and policy ambitiously purports to provide clean air and water, protect endangered and threatened species, clean-up hazardous and toxic waste sites, and infuse environmental considerations into the decision-making process of all federal agencies with respect to major proposals impacting the environment. Despite such lofty goals and an expansion of the regulatory state, certain types of activities and associated risks have eluded statutory coverage. Additionally, these uncoordinated federal environmental statutes typically embody a singular and sometimes myopic focus, leading to unpredictable or undesirable regulatory gaps, constraints, and inefficiencies. Further, limitations on standing and judicial review may significantly limit the ability of private litigants to enforce compliance with substantive and procedural duties of federal agencies and other private actors. This article illuminates these complexities through the lens of a hypothetical but plausible scenario presenting controversial environmental issues associated with hydraulic fracturing operations. The various issues presented are discussed and analyzed by a fictional Supreme Court, drawing upon both recent and historically significant judicial decisions of the real U.S. Supreme Court and others. This conceit highlights the problematic interplay of the federal statutes and standards of judicial review. It also provides insight into potential methods to navigate the substantive and procedural challenges faced by private litigants, federal agencies, and the courts in applying these complex statutes to address modern environmental threats, such as those presented in hydraulic fracturing activities

An Environmental Conversation

Federal environmental law and policy ambitiously purports to provide clean air and water, protect endangered and threatened species, clean-up hazardous and toxic waste sites, and infuse environmental considerations into the decision-making process of all federal agencies with respect to major proposals impacting the environment. Despite such lofty goals and an expansion of the regulatory state, certain types of activities and associated risks have eluded statutory coverage. Additionally, these uncoordinated federal environmental statutes typically embody a singular and sometimes myopic focus, leading to unpredictable or undesirable regulatory gaps, constraints, and inefficiencies. Further, limitations on standing and judicial review may significantly limit the ability of private litigants to enforce compliance with substantive and procedural duties of federal agencies and other private actors. This article illuminates these complexities through the lens of a hypothetical but plausible scenario presenting controversial environmental issues associated with hydraulic fracturing operations. The various issues presented are discussed and analyzed by a fictional Supreme Court, drawing upon both recent and historically significant judicial decisions of the real U.S. Supreme Court and others. This conceit highlights the problematic interplay of the federal statutes and standards of judicial review. It also provides insight into potential methods to navigate the substantive and procedural challenges faced by private litigants, federal agencies, and the courts in applying these complex statutes to address modern environmental threats, such as those presented in hydraulic fracturing activities