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

The National Environmental Policy Act suffers from a declining reputation due to high expectations and misunderstood implementation. The U.S. Supreme Court has disappointed environmental advocates by repeatedly ruling that NEPA does not impose substantive obligations to protect the environment that are judicially enforceable. As a result, some critics have characterized NEPA as a mere paperwork statute, imposing only bureaucratic red tape. Nevertheless, some courts have read NEPA to require close judicial scrutiny of federal agency actions with significant environmental consequences and have enjoined agency proposals that do not publicly disclose those consequences. The problem is that the level of judicial scrutiny that the NEPA demands of courts often seems haphazard, perhaps a function of the perceived merits of the underlying action. In this study we suggest that the results of NEPA litigation are much more predictable that often assumed because we maintain that comments of other federal and state agencies on NEPA proposals are a good predictor of NEPA case law. This conclusion reinforces the results of a twenty-year old study, although we acknowledge that NEPA litigation is not wholly a function of adverse agency comments. We maintain that if potential NEPA plaintiffs placed a higher value the role of agency comments in subsequent NEPA litigation, the results of NEPA case law would become more predictable and closer to the vision that Congress had for NEPA forty years ago