Scholarship highlight: NEPA’s 0-17 record at the Court

In 2008, I published an article in the Georgetown Law Journal, Advocacy Matters Before and Within the Supreme Court; Transforming the Court by Transforming the Bar, on the impact of the emergence of a modern Supreme Court Bar on the Supreme Court.  The article’s basic thesis, as described in its title was that “advocacy matters” — by influencing the cases that the Court decides (or decides not) to hear on the merits, and by influencing the results in those cases, both judgments and opinions.  The article focused on the impact of advocacy both before the Court and within the Court.

This past June, I published in the Georgetown Law Journal, a second, related article, The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains, that may seem like a sequel, but was in fact a prequel to the 2008 publication.  My work on Supreme Court advocacy began with my examining closely the advocacy in Supreme Court cases arising under the National Environmental Policy Act.  During that research, I examined not just the rulings, but all the briefs and arguments in the cases, and the archival papers of Justices on the Court at the time, including Justices Blackmun, Brennan, Douglas, Marshall, and Powell, It was during the research and writing of what was supposed to be the first article on the topic that I became increasingly persuaded that what I was witnessing in NEPA cases was significant far beyond NEPA and had particular portent in light of the emergence of a modern Supreme Court Bar.

The first draft of the article discussed mostly NEPA and just a bit about the Bar; then in subsequent drafts, what began as the article’s tail gradually became the body of the article. Indeed, the transformation was so great that I finally was persuaded, after some faculty workshops, that I needed to split the research into two.  And, once I did so, I decided that the Supreme Court Bar article should come out first because it was more timely and less historical than the NEPA article.  Only after publishing the article on the Bar did I return to the NEPA article, and completed that research in light of what I had concluded in the Bar article and intervening developments, which included two new NEPA cases that the Court had since decided.

So what is this new NEPA article about?   It begins with a fascinating premise. The Supreme Court has decided seventeen NEPA cases, and the government has not only won every case, but won them almost all unanimously. Environmentalists did not receive a single vote from a Justice in a case subject to plenary review between 1976 and 2008.  That’s a long time. Environmentalists have never even persuaded the Court to grant one of its petitions and decide a case on the merits.  All the grants have instead come from environmental NEPA wins in the lower courts. Commentators routinely cite the drubbing that environmentalists have received in NEPA cases as evidence of the Court’s hostility toward environmental law and environmentalism.

But a close look at the cases, extending beyond what appears in the U.S. Reports, suggests a very different and more nuanced story and some further teaching about the significance of advocacy. First, as revealed by the written briefs and oral arguments of the advocates and by the internal deliberations of the Justices in those cases, the government’s “perfect record” came at a significant cost: the Solicitor General abandoned many lower court arguments and made major concessions about NEPA’s requirements. There were many important environmental victories within those losses, which have since played a role in NEPA continuing to serve as one of the nation’s most important environmental statutes.  Indeed, in some instances, the NEPA plaintiffs won more than they lost. The government’s “victories” accordingly came at a price.  It is a mistake therefore to characterize in a binary fashion all of the Court’s NEPA cases as mere environmental losses without a fuller understanding of what happened in those cases.

Second, the NEPA cases underscore the difference that skilled advocacy makes on either side of the lectern: by the advocates before the Court and by the Justices during the Court’s own internal deliberations. The significance of a Court opinion turns on the particular wording of its reasoning far more than on whether it ends with an “affirmed” or “reversed.” And the better advocates before and within the Court are exceedingly effective at shaping that reasoning. In NEPA cases, the Solicitor General has generally outlitigated NEPA plaintiffs both at the jurisdictional stage and on the merits, and within the Court, no Justice was more influential than Justice, and later Chief Justice, William Rehnquist. By contrast, environmentalists may have understandably praised Justice Douglas’s environmentalism, but he proved comparatively ineffective in NEPA cases, in part no doubt because NEPA came before the Court during Douglas’s final years on the Court.

NEPA’s story before the Supreme Court is, therefore, not a happy one for NEPA enthusiasts, but the story is not nearly as dismal as routinely supposed. The Justices may have failed to appreciate its potential to serve as a substantive limit on agency action, but they have not been systematically hostile to its goals. To the extent, moreover, that NEPA precedent has been less rather than more favorable to NEPA plaintiffs, much of that is best explained by the Solicitor General’s comparative strategic and expertise advantage before the Court and Rehnquist’s heightened skills on the bench.