The national environmental policy act in the U.S. Supreme court: A reappraisal and a peek behind the curtains

Georgetown Law Journal

Volumn 100, Issue 5, 2012, Pages 1507-1586

  Lazarus, Richard ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84864853549     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (332)

1. See Matthew J. Lindstrom, Procedures Without Purpose: The Withering Away of the National Environmental Policy Act's Substantive Law, 20 J. LAND RESOURCES & ENVTL. L. 245, 245 (2000)
2. Daniel R. Mandelker, Thoughts on NEPA at 40, 39 ENVTL. L. REP., NEWS & ANALYSIS 10640, 10641 (2009)
3. Kenneth S. Weiner, NEPA and State NEPAs: Learning from the Past, Foresight for the Future, 39 ENVTL. L. REP., NEWS & ANALYSIS 10675, 10675 (2009)
4. see also WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW § 9.1, at 801 (2d ed. 1994) ("The National Environmental Policy Act of 1969 is . . . the most famous statute of its kind on the planet." (footnote omitted)).
5. Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010)
6. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)
7. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004)
8. Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004)
9. Robertson v. Seattle Audubon Soc'y, 503 U.S. 429 (1992)
10. Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989)
11. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)
12. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983)
13. Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983)
14. Weinberger v. Catholic Action of Haw./Peace Educ. Project, 454 U.S. 139 (1981)
15. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980)
16. Andrus v. Sierra Club, 442 U.S. 347 (1979)
17. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978)
18. Kleppe v. Sierra Club, 427 U.S. 390 (1976)
19. Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776 (1976)
20. Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289 (1975)
21. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973).
22. The last case in which a Justice voted for NEPA plaintiffs was Kleppe v. Sierra Club, 427 U.S. 390, 415-23 (1976) (Marshall & Brennan, JJ., concurring in part and dissenting in part). As described below, see infra note 210 and accompanying text, Marshall also filed a lone dissent from the Court's per curiam summary reversal in Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980), but because that ruling was reached without the benefit of oral argument and briefing on the merits, Marshall's dissent does not break the thirty-two-year string of unanimous losses from NEPA cases subject to "plenary review."
23. Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. REV. 703, 724-25 (2000)
24. see BRUCE ALLEN MURPHY, WILD BILL: THE LEGEND AND LIFE OF WILLIAM O. DOUGLAS 455 (2003) ("I'm ready to bend the law in favor of the environment and against the corporations," Justice Douglas reportedly told one law professor in the early 1970s).
25. The papers of William O. Douglas, Professor of Law, Securities and Exchange Commissioner, and Associate Justice of the Supreme Court, were given to the Library of Congress by Justice Douglas in three installments, with the first installments arriving during the 1960s, and the final installments bequested to the Library in 1980 and arriving in 1980, 1985, and 1997. The papers are contained in abandonabout 1800 boxes, and the Library of Congress has a finding aid for the collection. See MANUSCRIPT DIVISION, LIBRARY OF CONGRESS, WILLIAM O. DOUGLAS: A REGISTER OF HIS PAPERS IN THE LIBRARY OF CONGRESS (2000) (last revised 2008). The papers are referred to hereinafter as "The Douglas Papers."
26. The papers of Thurgood Marshall, lawyer, judge, Solicitor General, and Associate Justice of the Supreme Court, were given to the Library of Congress by Justice Marshall in 1991. The collection consists of approximately 500 boxes of materials, and the Library of Congress has a finding aid for the collection. See MANUSCRIPT DIVISION, LIBRARY OF CONGRESS, THURGOOD MARSHALL: A REGISTER OF HIS PAPERS IN THE LIBRARY OF CONGRESS (2001) (last revised 2004). The papers are referred to hereinafter as "The Marshall Papers."
27. The papers of Lewis F. Powell Jr., lawyer and Associate Justice of the Supreme Court, were given to the Washington and Lee School of Law by Justice Powell and first opened to researchers in 1994. Researchers must receive permission in advance to review the papers. The collection consists of approximately 363 cubic feet, and Washington and Lee has a finding aid for the collection. See WASHINGTON AND LEE UNIVERSITY, A GUIDE TO THE LEWIS F. POWELL JR. PAPERS 1921-1998 (2002). The papers are referred to hereinafter as "The Powell Papers."
28. The papers of William J. Brennan, Jr., lawyer, judge, and Associate Justice of the Supreme Court, were given to the Library of Congress by Justice Brennan from 1967 to 1998. The collection consists of approximately one-thousand boxes of materials, and the Library of Congress has a finding aid for the collection. See MANUSCRIPT DIVISION, LIBRARY OF CONGRESS, WILLIAM J. BRENNAN, JR.: A REGISTER OF HIS PAPERS IN THE LIBRARY OF CONGRESS (2001) (last revised 2004). The papers are referred to hereinafter as "The Brennan Papers."
29. The papers of Harry A. Blackmun, lawyer, judge, and Associate Justice of the Supreme Court, were given to the Library of Congress by Justice Blackmun in 1997, with the understanding that they would not be made generally available to researchers at the Library of Congress until five years after his death. The papers became available in March 2004. See Linda Greenhouse, Documents Reveal the Evolution of a Justice, N.Y. TIMES (Mar. 4, 2004), http://www.nytimes.com/ 2004/03/04/politics/ 04BLAC.html?hp. The Library of Congress has a finding aid for the collection.
30. See MANUSCRIPT DIVISION, LIBRARY OF CONGRESS, HARRY A. BLACKMUN PAPERS: A FINDING AID TO THE COLLECTION IN THE LIBRARY OF CONGRESS (2004) (last revised 2010). The papers are referred to hereinafter as "The Blackmun Papers."
31. See A. Dan Tarlock, The Story of Calvert Cliffs: A Court Construes the National Environmental Policy Act To Create a Powerful Cause of Action, in ENVIRONMENTAL LAW STORIES 77, 83-86 (Richard J. Lazarus & Oliver A. Houck eds., 2005).
32. See PAUL CHARLES MILAZZO, UNLIKELY ENVIRONMENTALISTS: CONGRESS AND CLEAN WATER, 1945-1972, at 122-25 (2006).
33. See RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 67-97 (2004).
34. Id. at 68; National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970).
35. Tarlock, supra note 21, at 84-85.
36. National Environmental Policy: Hearing on S. 1075, S. 237, and S. 1752 Before S. Comm. on the Interior and Insular Affairs, 91st Cong. 116 (1969) (statement of Lynton K. Caldwell, Professor of Government, University of Indiana).
37. See Tarlock, supra note 21, at 86-88.
38. See Calvert Cliffs' Coordinating Comm., Inc. v. Atomic Energy Comm'n, 449 F.2d 1109, 1111 (D.C. Cir. 1971)
39. See Tarlock, supra note 21, at 82-83.
40. See id; see also Oliver A. Houck, Book Review, Is That All? A Review of The National Environmental Policy Act, An Agenda for the Future, by Lynton Keith Caldwell, 11 DUKE ENVTL. L. & POL'Y F. 173, 183 n.38 (2000) (speculating that legislators would not have passed NEPA had they understood how it would be interpreted in cases like Calvert Cliffs).
41. Calvert Cliffs, 449 F.2d at 1111.
42. Calvert Cliffs, 449 F.2d at 1112 (emphasis added).
43. CONG. REC. 14346-47 (1969) (statement of Sen. Jackson).
44. Calvert Cliffs, 449 F.2d at 1112. 57. Id.
45. See FREDERICK R. ANDERSON, NEPA IN THE COURTS: A LEGAL ANALYSIS OF THE NATIONAL ENVIRONMENTAL POLICYACT 247-65 (1973) Tarlock, supra note 21, at 102-07.
46. See Tarlock, supra note 21, at 105.
47. See ANDERSON, supra note 58, at 217-21
48. RICHARD A. LIROFF, A NATIONAL POLICY FOR THE ENVIRONMENT: NEPAAND ITS AFTERMATH 169-71 (1976).
49. See Kleppe v. Sierra Club, 427 U.S. 390, 421 (1976) (Marshall, J., concurring in part and dissenting in part) ("[T]his vaguely worded statute seems designed to serve as no more than a catalyst for development of a 'common law' of NEPA. To date, the courts have responded in just that manner and have created such a 'common law.'").
50. See, e.g., SERGE TAYLOR, MAKING BUREAUCRACIES THINK: THE ENVIRONMENTAL IMPACT STATEMENT STRATEGY OF ADMINISTRATIVE REFORM 80-82 (1984)
51. Wesley A. Magat & Christopher H. Schroeder, Administrative Process Reform in a Discretionary Age: The Role of Social Consequences, 1984 DUKE L.J. 301, 320-21
52. see also Joseph L. Sax, The (Unhappy) Truth About NEPA, 26 OKLA. L. REV. 239 (1973) (analyzing the practical operation of NEPA in the context of airport expansion).
53. See J. WILLIAM FUTRELL ET AL., ENVTL. LAW INST., NEPA IN ACTION, ENVIRONMENTAL OFFICES IN NINETEEN FEDERAL AGENCIES (1981) (detailing the structure and function of the environmental offices that NEPA caused to be created in various federal agencies).
54. See Council on Envtl. Quality, Number of EISs Filed 1970 to 2007 (2008), http://nepa.gov/nepa/ EISs-by-Year-1970-2007.pdf. Federal agencies prepared about the same number from 1979 to 2007, totaling nearly 34,000 draft and final impact statements. Id. The number of statements was highest in the 1970s and then leveled off at between five and six hundred per year since 1985. Id.
55. see also Council on Envtl. Quality, Calendar Year 2008 Filed EISs (2009), http://nepa.gov/nepa/Calendar-Year-2008-Filed-EISs.pdf (listing the EISs filed in 2008).
56. See JAMES RASBAND ET AL., NATURAL RESOURCES LAW AND POLICY 282 (2004) ("NEPA has achieved a great deal. Talk to NGO litigators about NEPA and many say it is critical in providing data on agency actions they could not otherwise obtain or use. In addition to providing the public with the agency's environmental analysis, NEPA serves an important additional purpose as a kind of clearinghouse for information required by other relevant laws.")
57. Charles M. Kersten, Note, Rethinking Transboundary Environmental Impact Assessment, 34 YALE J. INT'L L. 173, 190 (2009) ("Though NEPA itself does not constrain agencies' discretion, an EIS can reveal violations of other laws whose substantive provisions are mandatory. In tandem, these laws create a comprehensive legal framework with both procedural and substantive components.").
58. See COUNCIL ON ENVTL. QUALITY, THE NATIONAL ENVIRONMENTAL POLICY ACT: A STUDY OF ITS EFFECTIVENESS AFTER TWENTY-FIVE YEARS, 19-20 (Jan. 1997) ("While preparing EAs [environmental assessments], agencies often discover impacts that are 'significant,' which would require preparation of an EIS. Agencies may then propose measures to mitigate those environmental effects. If an agency finds that such mitigation will prevent a project from having significant impacts on the environment, the agency can then conclude the NEPA process by issuing a FONSI [Finding of No Significant Impact], rather than preparing an EIS. The result is a 'mitigated FONSI.' The 1992 CEQ survey and informal opinions of U.S. EPA officials responsible for reviewing NEPA analyses indicate an increase in the number of mitigated FONSIs.")
59. see also Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 COLUM. L. REV. 903, 932-42 (2002) (discussing "mitigated FONSIs").
60. Lois J. Schiffer, The National Environmental Policy Act Today, With an Emphasis on Its Application Across U.S. Borders, 14 DUKE ENVTL. L. & POL'Y F. 325, 326 (2004).
61. See Michael B. Gerrard, The Effect of NEPA Outside the Courtroom, 39 ENVTL. L. REP., NEWS & ANALYSIS 10615, 10615-16 (2009).
62. See COUNCIL ON ENVTL. QUALITY, supra note 68, at 13, 18 (describing examples of NEPA's impact on government decision makers)
63. Stark Ackerman, Observations on the Transformation of the Forest Service: The Effects of the National Environmental Policy Act on U.S. Forest Service Decision Making, 20 ENVTL. L. 703 (1990) (describing how the Forest Service integrated NEPA into its decision making)
64. Paul J. Culhane, NEPA's Impacts on Federal Agencies, Anticipated and Unanticipated, 20 ENVTL. L. 681 (1990) (describing the impact of NEPA on agency decision making)
65. Anita S. Krishnakumar, Representation Reinforcement: A Legislative Solution to a Legislative Process Problem, 46 HARV. J. ON LEGIS. 1, 25-26 (2009) ("In its thirty-five year history, NEPA unquestionably has increased federal agency sensitivity to environmental concerns during the policymaking process. Numerous proposed federal actions that would have had serious environmental consequences have been modified, or in some cases even abandoned, as a result of the NEPA process." (footnotes omitted))
66. Mary H. O'Brien, NEPA as It Was Meant To Be: NCAP v. Block, Herbicides, and Region 6 Forest Service, 20 ENVTL. L. 735 (1990) (describing the positive impact on NEPA of the Forest Service's development of a regional plan).
67. There is some uncertainty regarding the precise number of SEPAs, probably because the number shifts over time. See, e.g., COUNCIL ON ENVTL. QUALITY, ENVIRONMENTAL QUALITY: 25TH ANNIVERSARY REPORT 49 (1995) [hereinafter CEQ 25TH] ("NEPA has to date served as a model for over 25 states . . . .")
68. COUNCIL ON ENVTL. QUALITY, ENVIRONMENTAL QUALITY: 22ND ANNUAL REPORT 373 (1992) [hereinafter CEQ 22ND] (listing sixteen states, Puerto Rico, and the District of Columbia)
69. Noah D. Hall, Interstate Environmental Impact Assessment, 39 ENVTL. L. REP., NEWS &ANALYSIS 10667, 10668 (2009) ("A recent survey indicated that 32 states have some form of an environmental impact assessment policy modeled after NEPA.")
70. State Environmental Planning Information, COUNCIL ON ENVTL. QUALITY, http://nepa.gov/nepa/regs/states/ states.cfm (last updated Dec. 4, 2011) (listing sixteen states and the District of Columbia, Puerto Rico, and Guam).
71. EDWARD ZIEGLER, JR. ET AL., RATHKOPF'S THE LAW OF ZONING AND PLANNING § 9.2 (4th ed. 2011) (characterizing some SEPAs as "more ambitious or global" than their federal counterpart)
72. See Nicholas Robinson, NEPA at 40: International Dimensions, 39 ENVTL. L. REP. 10674 (2009)
73. International Environmental Impact Assessment (EIA) Agencies, NEPANET, http://nepa.gov/nepa/ eia.html (last visited Feb. 7, 2012) (listing links to thirty-three nations' laws).
74. The Supreme Court, 2010 Term-The Statistics, 125 HARV. L. REV. 362, 369 (2011).
75. Industry filed petitions parallel to the petitions filed by the Solicitor General in seven cases. See Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983)
76. Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983)
77. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980)
78. Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776 (1976)
79. Kleppe v. Sierra Club, 427 U.S. 390 (1976)
80. Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP II), 422 U.S. 289 (1975)
81. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).
82. See Upper Pecos Ass'n v. Peterson, 406 U.S. 944 (1972).
83. See Upper Pecos Ass'n v. Peterson, 409 U.S. 1021 (1972)
84. Memorandum for the Respondents Suggesting Mootness, Upper Pecos Ass'n, 409 U.S. 1021 (No. 71-1133).
85. The two cases in which the Court granted industry petitions in the absence of a petition filed by the government are Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978)
86. Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010).
87. For Vermont Yankee, see: Petition for a Writ of Certiorari, Vermont Yankee, 435 U.S. 519 (No. 76-419)
88. Petition for a Writ of Certiorari, Consumers Power Co. v. Aeschliman, 435 U.S. 519 (1978) (No. 76-528)
89. Brief for the Federal Respondents, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528).
90. For Monsanto, see: Brief for the Federal Respondents in Opposition, Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (No. 09-475)
91. Brief for the Federal Respondents Supporting Petitioner, Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (No. 09-475).
92. The Court denied Solicitor General petitions in United States Forest Service v. Earth Island Institute, 549 U.S. 1278 (2007)
93. Clark v. Southern Oregon Citizens Against Toxic Sprays, Inc. 469 U.S. 1028 (1984)
94. Morton v. Wilderness Society 411 U.S. 917 (1973)
95. Federal Power Commission v. Greene County Planning Board, 409 U.S. 849 (1972).
96. See LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND DEVELOPMENTS 244-45 tbl.3-6 (4th ed. 2007).
97. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004)
98. Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (2004)
99. Robertson v. Seattle Audubon Soc'y, 503 U.S. 429 (1992)
100. Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989)
101. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)
102. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983)
103. Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983)
104. Weinberger v. Catholic Action of Haw./Peace Educ. Project, 454 U.S. 139 (1981)
105. Andrus v. Sierra Club, 442 U.S. 347 (1979)
106. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978).
107. See Daniel Farber, Disdain for 17-Year-Old Statute Evident in High Court's Rulings, NAT'L L.J., May 4, 1987, at 22
108. see DANIEL R. MANDELKER, NEPA LAW AND LITIGATION: THE NATIONAL ENVIRONMENTAL POLICY ACT § 1:05 (1984) ("Neither has the Court been sympathetic to NEPA. Its decisions have diluted NEPA's environmental decision making responsibilities.").
109. Donald N. Zillman & Peggy Gentles, NEPA's Evolution: The Decline of Substantive Review, 20 ENVTL. L. 505, 506 (1990) (describing the "Court's almost invariable hostility to the 'environmentalist' position" in NEPA cases)
110. see also Richard E. Levy & Robert L. Glicksman, Judicial Activism and Restraint in the Supreme Court's Environmental Law Decisions, 42 VAND. L. REV. 343, 346-47 (1989) (characterizing Supreme Court precedent, including NEPA cases, as evidencing the Court's hostility toward environmental-protection law).
111. William H. Rodgers, Jr., NEPA at Twenty: Mimicry and Recruitment in Environmental Law, 20 ENVTL. L. 485, 497 (1990) ("The most impressive of these is an unbroken string of twelve Supreme Court decisions consistently rejecting interpretations advanced by environmental groups and accepting the narrower accounts espoused by the government as the NEPA defendant. In few walks of legal life has the Court demonstrated such a decided tilt in its choice of prevailing parties." (footnote omitted))
112. Nicholas C. Yost, NEPA's Promise-Partially Fulfilled, 20 ENVTL. L. 533, 549 (1990) ("[T]he United States Supreme Court has undone much of the promise of NEPA.").
113. RODGERS, supra note 2, at 838 ("The popular account, which is close enough to the truth to bear repeating, is that the Supreme Court is to NEPA as Joseph Hazelwood is to the wreck of the Exxon Valdez. Twelve times the Court has taken NEPA cases and twelve times has decided in favor of the government. The decisions, collectively, are known as the NEPA 'Dirty Dozen' although a closer account shows not twelve but twenty-two NEPA issues have been subject to judicial pruning in these cases.").
114. Daniel A. Farber, Is the Supreme Court Irrelevant? Reflections on the Judicial Role in Environmental Law, 81 MINN. L. REV. 547, 561, 567 (1997).
115. Yost, supra note 93, at 539. The most notable exception to the notion that the Court's hostility toward NEPA best explained NEPA plaintiffs' loss streak was supplied by an article written by a career Department of Justice attorney who expressed the contrasting view that the government's winning record was better understood as reflecting the Solicitor General's careful selection of cases to be heard by the Court and NEPA plaintiffs' reluctance to seek the Court's review. See David C. Shilton, Is the Supreme Court Hostile to NEPA? Some Possible Explanations for a 12-0 Record, 20 ENVTL. L. 551, 555-57 (1990).
116. Jason J. Czarnezki, Revisiting the Tense Relationship Between the U.S. Supreme Court, Administrative Procedure, and the National Environmental Policy Act, 25 STAN. ENVTL. L.J. 3, 10 (2006) (quoting Shilton, supra note 97, at 553)
117. See Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983)
118. Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983)
119. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980)
120. Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776 (1976)
121. Kleppe v. Sierra Club, 427 U.S. 390 (1976)
122. Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP II), 422 U.S. 289 (1975)
123. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).
124. Notably, the forty-two business NEPA petitions fall into two categories: two-thirds are cases in which business-development interests were seeking review of a lower court case that had ruled in favor of environmental plaintiffs and one-third are cases in which the business interests were themselves the NEPA plaintiffs, suing a federal agency for an alleged NEPA violation. The latter type of case may sound somewhat counterintuitive, but especially in NEPA's early years before federal courts started rejecting such business NEPA plaintiff suits on standing grounds, business interests often tried to invoke NEPA to challenge the legality of government action that might favor a business competitor. See, e.g., Clinton Cmty. Hosp. Corp. v. S. Md. Med. Ctr., 510 F.2d 1037 (4th Cir.), cert. denied, 95 S. Ct. 2666 (1975). The Court, however, never granted certiorari on any of these business NEPA plaintiff cases.
125. See supra note 82 and accompanying text 105. See Brief for the Federal Respondents on Petitions for Writs of Certiorari at 5-10, Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978) (Nos. 76-419, 76-528, 76-548, & 76-745).
126. Brief for the Federal Respondents in Opposition at 10-16, Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (No. 09-475).
127. See Reply Brief for the Federal Respondents Supporting Petitioner at 5-19, Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (No. 09-475)
128. Reply Brief for the Federal Respondents at 1-10, Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519 (1978) (Nos. 76-419 & 76-528).
129. See, e.g., Cert Pool Memorandum at 1, Sun Exploration & Prod. Co. v. Lujan, 489 U.S. 1012 (1989) (No. 88-865) (Feb. 9, 1989) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("Nothing in here would change anyone's mind, since the SG says not to take the case, even though the Govt lost.")
130. Cert Pool Memorandum at 11, Gen. Pub. Utils. Corp v. Susquehanna Valley Alliance, 449 U.S. 1096 (1981) (No. 80-382) (Nov. 13, 1980) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (concluding no review was necessary because the NRC was not seeking certiorari: "The Commission apparently believes that it can live with this decision, perhaps hoping that the CA will limit it or overrule it en banc in a future case").
131. See Brief for the Federal Respondents in Opposition, Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458 (2009) (Nos. 07-984 & 07-990)
132. Brief for the Federal Respondents in Opposition, Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) (Nos. 07-588, 07-589, & 07-597).
133. Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458 (2009)
134. Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009). Even more striking, the petitioning businesses were merely intervenors in the lower courts.
135. See Richard J. Lazarus, Docket Capture at the High Court, 119 YALE L.J. ONLINE 89, 91-93 (2009), http://yalelawjournal.org/2010/01/24/lazarus.html.
136. It was plainly a close question whether certiorari would be granted in this case. It takes four Justices to grant review and four Justices-Black, Douglas, Brennan, and Marshall-dissented from the Court's decision on December 18, 1970, to vacate the stay of the lower court's mandate that the Court had previously granted. See San Antonio Conservation Soc'y v. Tex. Highway Dep't, 400 U.S. 968 (1970)
137. San Antonio Conservation Soc'y v. Tex. Highway Dep't, 400 U.S. 939 (1970). The papers of Justice Blackmun also further reveal that Blackmun's law clerk recommended in favor of Court review. Clerk Memorandum on Certiorari at 7, 400 U.S. 968 (1970) (No. 1101) (on file with the Library of Congress, in The Blackmun Papers, supra note 20). Nothing in those papers indicates why the Justice voted against review. The papers of Justice Douglas also demonstrate the particularly keen interest Douglas harbored in the case. Douglas's files for San Antonio included a cut-out article from the New York Times, dated December 14, 1970, the same day the certiorari petition was filed, on NEPA and how some believed that the executive branch was undermining the law's ability "to achieve the act's purpose of making the Federal Government, in its own undertakings a protector of the environment rather than a contributor to its impairment."
138. E.W. Kenworthy, U.S. Environment Law Attacked, N.Y. TIMES, Dec. 14, 1970 (on file with the Library of Congress, in The Douglas Papers, supra note 16).
139. Id. at CXI. The arguing counsel for the environmental applicants was David Sive, who had a long and distinguished career in environmental law and is frequently described as the "grandfather" or "father" of modern environmental law. See, e.g., Biography of David Sive, PACE LAW SCH., http:// www.pace.edu/page.cfm?doc-id-29839 (last visited Feb. 7, 2012)
140. Environmental Law Program, UNIV. OF HAW. SCH. OF LAW, http://www.hawaii.edu/elp/brochure/elpfaculty.html (last visited Feb. 7, 2012)
141. Careers, SIVE, PAGET & RIESEL P.C., http://www.sprlaw.com/careers/ index.shtml (last visited Feb. 7, 2012).
142. Transcript of Oral Argument at 20-21, Comm. for Nuclear Responsibility 404 917 U.S (No. A-483)
143. The conference notes prepared by Justices Douglas and Blackmun both detail the comments made by the seven Justices present during the deliberations and confirm that the final vote was four-tothree in favor of denying the injunction. See Harry A. Blackmun, Conference Notes, Comm. for Nuclear Responsibility, 404 U.S. 917 (No. A-483) (Nov. 6, 1971) (on file with the Library of Congress, in The Blackmun Papers, supra note 20)
144. William O. Douglas, Conference Notes, Comm. for Nuclear Responsibility, 404 U.S. 917 (No. A-483) (Nov. 6, 1971) (on file with the Library of Congress, in The Douglas Papers, supra note 16). At the time, there were only seven Justices on the Court because Justices John Harlan and Hugo Black both retired in September 1971.
145. Comm. for Nuclear Responsibility, 404 U.S. 917 (Douglas, J., dissenting)
146. Brief for the Petitioner at 4-6, Upper Pecos Ass'n, 406 U.S. 944 (No. 71-1133).
147. Upper Pecos Ass'n, 409 U.S. 1021 (1972).
148. See Memorandum for the Respondents Suggesting Mootness, supra note 81.
149. Cf. MURPHY, supra note 14, at 481-95 (describing Justice Douglas's medical problems and behavior in his final year on the Court).
150. See, e.g., Clerk Memorandum on Certiorari to Justice Thurgood Marshall, Vill. of Los Ranchos de Albuquerque v. Barnhart, 498 U.S. 1109 (1991) (No. 90-783) (Feb. 11, 1991) (on file with the Library of Congress, in The Marshall Papers, supra note 17) ("[T]his petn. essentially disputes the application of law to facts.")
151. Cert Pool Memorandum at 6, Portland Audubon Soc'y v. Lujan, 494 U.S. 1026 (1990) (No. 89-931) (Mar. 8, 1990) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (recommending denial of certiorari because of, inter alia, the "fact specific holding")
152. Cert Pool Memorandum at 4, Dickison v. Goldschmidt No. 80-464 Nov. 3 (1980) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (noting in handwriting that "I am troubled about the factual correctness . . . . Nonetheless, the case is purely factual")
153. Cert Pool Memorandum at 5, Save the Bay, Inc. v. U.S. Corps of Eng'rs, 449 U.S. 900 (1980) (No. 80-171) (Sept. 26, 1980) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("In any event, petr has offered no convincing argument for review by this Court of the essentially factual issues presented here.")
154. Cert Pool Memorandum at 9, Life of the Land v. Brinegar, 416 U.S. 961 (1974) (No. 73-1088) (Apr. 10, 1974) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (handwritten note characterizing as a factual issue the degree of interested party participation in the drafting of an EIS)
155. Clerk Memorandum on Certiorari to Justice William O. Douglas, Citizens Envtl. Council v. Brinegar, 416 U.S. 936 (1974) (No. 73-943) (Mar. 27, 1974) (on file with the Library of Congress, in The Douglas Papers, supra note 16) (noting that the case "would seem to be principally a factual matter not warranting review")
156. Cert Pool Memorandum at 13, New York v. U.S. Dep't of Transp., 465 U.S. 1055 (1984) (No. 83-770) (Feb. 21, 1984) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (characterizing question whether environmental assessment is sufficient as "highly fact specific")
157. Cert Pool Memorandum at 7, Fugate v. Arlington Coal. on Transp., 409 U.S. 1000 (1972) (No. 72-218) (Oct. 20, 1972) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (summarizing the Solicitor General's claim that the case was fact-bound).
158. See, e.g., Cert Pool Memorandum at 6, Indiana v. Scottsdale Mall, 434 U.S. 1008 (1978) (No. 76-1609) (June 30, 1977) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (suggesting that "little harm would be done by letting [the] issue percolate in the [courts of appeals] for a while")
159. Pool Memorandum, Application for Recall and Stay of CA 8 Mandate at 3, Minn. Pub. Interest Research Grp. v. Sec'y of Agric., 429 U.S. 935 (1976) (No. A-339) (Oct. 28, 1976) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("This is the sort of case where the irreversible nature of the damage would normally justify a stay, despite what appears to be a weak case on the merits. However, I do not think it is good policy to allow 'public interest' groups to tie up governmental action indefinitely with this kind of legal strategy.")
160. Cert Pool Memorandum at 6-7, Envtl. Def. Fund v. Stamm, 416 U.S. 974 (1974) (No. 73-1179) (Apr. 17, 1974) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("The Court will want to clear up the standard of review matter at some point, but I am not convinced this case is the one in which to do it.")
161. Cert Pool Memorandum at 7, Nat'l Helium Corp. v. Morton, 416 U.S. 993 (1974) (No. 73-1120) (Apr. 10, 1974) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (suggesting that though the substantive issue of NEPA "must ultimately be faced by the Court, this is probably not a good case in which to do so").
162. See, e.g., Cert Pool Memorandum at 10, Pub. Citizen v. Office of U.S. Trade Representative, 510 U.S. 1041 (1994) (No 93-560) (Dec. 27, 1993) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("The case is moot-NAFTA's been passed.")
163. Cert Pool Memorandum at 7, Town of Huntington v. Marsh, 494 U.S. 1004 (1990) (No. 89-781) (Jan. 18, 1990) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("[T]he Corps' new EIS is nearly done. While the case is not technically moot, this makes the issue of whether petrs are entitled to suspension of the dumping somewhat less urgent.")
164. Cert Pool Memorandum at 6, Gee v. Boyd, 471 U.S. 1058 (1985) (No. 84-1062) (Apr. 2, 1985) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (acknowledging a circuit conflict and disagreeing with the Solicitor General that the conflict was merely a "semantic quibble," but noting that "the project at issue . . . ha[d] been substantially completed," raising a threshold question of mootness)
165. Cert Pool Memorandum at 4, Tex. Comm. on Natural Res. v. Bergland, 439 U.S. 966 (1978) (No. 78-485) (Oct. 31, 1978) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("With regard to whether an EIS should have been issued for clear-cutting prior to the development of the land management plans, that issue is timebound since those plans must be developed as of this month.")
166. Cert Pool Memorandum at 6, Citizens Envtl. Council v. Brinegar, 416 U.S. 936 (1974) (No. 73-943) (Mar. 23, 1974) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (acknowledging that the case presented a potentially certworthy issue, but suggesting that it "hardly seems like an appropriate vehicle" because the Court was presented "with a fait accompli").
167. William O. Douglas, Conference Notes at 1, SCRAP, 412 U.S. 669 (No. 72-523) (Mar. 2, 1973) (on file with the Library of Congress, in The Douglas Papers, supra note 16) ("WJB: There is standing under Sierra Club case . . . affirm.").
168. Id. at 2. 149. Harry A. Blackmun, Handwritten Notes at 1, SCRAP, 412 U.S. 669 (Nos. 72-535 & 72-563) (on file with the Library of Congress, in The Blackmun Papers, supra note 20). These same case notes, which it was his custom to prepare before argument and conference, show Blackmun first writing that the railroads "cannot prevail" on the merits and then seeming to cross out the "cannot." Id. at 2. 150.
169. Clerk Memorandum to Justice Harry A. Blackmun at 2, SCRAP, 412 U.S. 669 (No. 72-523) (May 17, 1973) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
170. Letter from Justice Potter Stewart to Justice Harry A. Blackmun, SCRAP, 412 U.S. 669 (No. 72-523) (June 6, 1973) (on file with the Library of Congress, in The Blackmun Papers, supra note 20)
171. Id. at 303-04. 154. Id. at 302-04. 155. Id. at 322-23, 326. 156. Id. at 319-20. 157. Id. at 317, 322-24, 326. 158. Harry A. Blackmun, Pre-Argument Notes at 4, SCRAP II, 422 U.S. 289 (Nos. 73-1966 & 73-1971) (Mar. 25, 1975) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
172. Clerk Memorandum to Justice Harry A. Blackmun, SCRAP II, 422 U.S.
173. See also Clerk Bench Memorandum to Justice Harry A. Blackmun at 19, SCRAP II, 422 U.S.
174. After White circulated his opinion, Marshall circulated his intent to dissent before changing his mind. Compare Letter from Justice Thurgood Marshall to Justice Byron R. White, SCRAP II, 422 U.S. 289 (Nos. 73-1966 & 73-1971) (June 6, 1975)
175. (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("In due course I will circulate a dissent in this case.") with Letter from Justice Thurgood Marshall to Justice Byron R. White, SCRAP II, 422 U.S. 289 (Nos. 73-1966 & 73-1971) (June 18, 1975) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("Dear Byron: Please join me.").
176. Justice Douglas suffered a severe stroke in the final weeks of 1974 and literally broke out of his hospital to attend arguments during the week SCRAP II was argued. MURPHY, supra note 14, at 481-85. He invited reporters to his office but proved essentially incoherent. Id. at 486-87. The notes of Justice Blackmun on the conference discussion held by the Justices following the oral argument in SCRAP II indicate that when it was Douglas's turn to speak, there was a "long pause [for] 15 minutes." Harry A. Blackmun, Conference Notes at 1, SCRAP II, 422 U.S. 289 (Nos. 73-1966 & 73-1971) (Mar. 28, 1975) (on file with the Library of Congress, in The Blackmun Papers, supra note 20). Not long after, the Justices themselves decided to take action to persuade Justice Douglas to resign, which he finally did the following fall. MURPHY, supra note 14, at 492-94. 162. 426 U.S. 776 (1976).
177. H.A. Blackmun Pre-Argument Notes at 4 Flint Ridge, 426 U.S. 776 Nos. 75-510 & 75-545 Apr. 26, 1976
178. See supra notes 55-57 and accompanying text. 169. Clerk Memorandum to Justice Harry A. Blackmun at 1, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (June 3, 1976) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("This one has a surprise in it. I had thought that CA10's holding that an impact statement was required in connection with a real estate development's 'statement of record' was going to be reversed on the broad ground that no EIS is required because the HUD Secretary has absolutely no discretion bearing on environmental issues. Instead, Justice Marshall has chosen the narrow ground . . . .").
179. Sierra Club, 514 F.2d at 873
180. Kleppe, 427 U.S. at 409. 181. Id. 182. Clerk Bench Memorandum to Justice Harry A. Blackmun at 1, Kleppe, 427 U.S. 390 (No. 75-561) (Apr. 23, 1976) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("[T]he Dept. of Interior is voluntarily undertaking regional statements," making the case "largely academic, if not moot.").
181. Kleppe, 427 U.S. at 410 n.21.
182. Clerk Memorandum to Justice Harry A. Blackmun, Andrus, 442 U.S. 347 (No. 78-625) (May 30, 1979) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (citing Justice Brennan's Draft Opinion at 15 & n.22).
183. Brief for the Petitioners at 28-34, Andrus, 442 U.S. 347 (No. 78-625).
184. See infra notes 413-19 and accompanying text. 215. See Draft Per Curiam Opinion, Strycker's Bay, 444 U.S. 223 (No. 79-168) (Nov. 13, 1979) (on file with the Library of Congress, in The Marshall Papers, supra note 17)
185. Draft Per Curiam Opinion, Strycker's Bay, 444 U.S. 223 (No. 79-168) (Nov. 15, 1979) (noting "stylistic changes pages 3, 5") (on file with the Library of Congress, in The Marshall Papers, supra note 17).
186. See Letter from Chief Justice Burger to Justice Rehnquist, Strycker's Bay, 444 U.S. 223 (No. 19-168) (Nov. 14, 1979) (on file with the Library of Congress, in The Marshall Papers, supra note 17)
187. Letter from Justice Powell to Justice Rehnquist, Strycker's Bay, 444 U.S. 223 (No. 19-168) (Nov. 14, 1979) (on file with the Library of Congress, in The Marshall Papers, supra note 17)
188. Letter from Justice Blackmun to Justice Rehnquist, Strycker's Bay, 444 U.S. 223 (No. 19-168) (Nov. 14, 1979) (on file with the Library of Congress, in The Marshall Papers, supra note 17)
189. Letter from Justice White to Justice Rehnquist, Strycker's Bay, 444 U.S. 223 (No. 19-168) (Nov. 14, 1979) (on file with the Library of Congress, in The Marshall Papers, supra note 17)
190. Letter from Justice Stewart to Justice Rehnquist, Strycker's Bay, 444 U.S. 223 (No. 19-168) (Nov. 14, 1979) (on file with the Library of Congress, in The Marshall Papers, supra note 17).
191. See Letter from Justice Brennan to Justice Rehnquist, Strycker's Bay, 444 U.S. 223 (No. 19-168) (Nov. 15, 1979) (on file with the Library of Congress, in The Marshall Papers, supra note 17)
192. Letter from Justice Stevens to Justice Rehnquist, Strycker's Bay, 444 U.S. 223 (No. 19-168) (Nov. 14, 1979) (on file with the Library of Congress, in The Marshall Papers, supra note 17).
193. See Docket Sheet, Strycker's Bay, 444 U.S. 223 (No. 79-168) ("26 -relist TM") (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
194. Strycker's Bay, 444 U.S. 223.
195. Compare Draft Per Curiam Opinion, Strycker's Bay, 442 U.S. 223 (No. 79-168) (Nov. 13, 1979)
196. Strycker's Bay, 444 U.S. at 228 n.2 (Marshall, J., dissenting).
197. Catholic Action, 454 U.S. at 145-46. 228. Id. 229. Id. at 147-50 (Blackmun, J., concurring in judgment).
198. Clerk Bench Memorandum to Justice Harry A. Blackmun at 7, Catholic Action, 454 U.S. 139 (No. 80-1377) (Aug. 10, 1981) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("The SG readily acknowledges that NEPA applies to all of the Navy's activities, classified as well as unclassified.")
199. Clerk Supplemental Memorandum to Justice Harry A. Blackmun at 1, Catholic Action, 454 U.S. 139 (No. 80-1377) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("The SG has filed a reply brief, which makes the hypothetical concession that, if nuclear weapons are stored at West Loch, 'an appropriate environmental impact document has been prepared, as required by NEPA and Department of Defense regulations.'").
200. Clerk Bench Memorandum to Justice Harry A. Blackmun at 16, Catholic Action, 454 U.S. 139 (No. 80-1377) (Aug. 10, 1981) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
201. Transcript of Oral Argument at 15-19, Catholic Action, 454 U.S. 139 (No. 80-1377).
202. Catholic Action, 454 U.S. at 146.
203. See Letter from Justice Harry A. Blackmun to Justice William H. Rehnquist at 1, Catholic Action, 454 U.S. 139 (No. 80-1377) (Nov. 10, 1981) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("In light of the SG's position at oral argument, could not the Court well observe that the Navy is bound by the lower court findings to the effect that the storage of nuclear weapons is a major federal action?")
204. Letter from Justice William H. Rehnquist to Justice Harry A. Blackmun at 1, Catholic Action, 454 U.S. 139 (No. 80-1377) (Nov. 11, 1981) (on file with the Library of Congress, in The Brennan Papers, supra note 19) ("I do not think that the issue . . . needs to be expressly decided, and would prefer not to.")
205. Clerk Memorandum to Justice Harry A. Blackmun, Catholic Action, 454 U.S. 139 (No. 80-1377) (Nov. 12, 1981) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("WHR's opinion can be read as suggesting that it is a major action, and I'm not sure that there is much to be gained in drawing attention to the question.").
206. Metropolitan Edison, 460 U.S. at 771 n.5.
207. See Clerk Bench Memorandum to Justice Harry A. Blackmun at 28-32, Metropolitan Edison, 460 U.S. 766 (Nos. 81-2399 & 82-358) (Feb. 27, 1983) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (contrasting Solicitor General and Metropolitan Edison's arguments)
208. Clerk Bench Memorandum to Justice Thurgood Marshall at 6, Metropolitan Edison, 460 U.S. 766 (Nos. 81-2399 & 82-358) (Feb. 21, 1983) (on file with the Library of Congress, in The Marshall Papers, supra note 17) ("In my view Metro. Edison's view is clearly incorrect. NEPA is concededly concerned with human health, and there is no support for artificially distinguishing between physical and mental health. . . . The SG's position is more reasonable, since it acknowledges that human health includes both mental and physical components.").
209. Justice William J. Brennan, Jr., Conference Notes, Metropolitan Edison, 460 U.S. 766 (Nos. 81-2399 & 82-358) (Mar. 4, 1983) (on file with the Library of Congress, in The Brennan Papers, supra note 19) (noting that Justice Marshall commented that he would "join only a very narrow opinion").
210. Justice Brennan persuaded Justice Rehnquist to add some better language to the opinion in footnote 7, which reads, "we do not mean to suggest that any cause-effect relation too attenuated to merit damages in a tort suit would also be too attenuated to merit notice in an EIS . . . ." Metropolitan Edison, 460 U.S. at 774 n.7. Justice Brennan said he had in mind "purely physical causal chains (smokestack emissions in Ohio to acid rain in Maine to dead fish in Maine lakes to starvation of fish-eating birds, etc.), which might be too 'attenuated' to merit damages, but which would nevertheless come within the core concerns of NEPA." Letter from Justice William J. Brennan, Jr. to Justice William H. Rehnquist at 2, Metropolitan Edison, 460 U.S. 766 (Nos. 81-2399 & 82-358) (Mar. 24, 1983) (on file with the Library of Congress, in The Brennan Papers, supra note 19).
211. Clerk Bench Memorandum to Justice Harry A. Blackmun at 28, Baltimore Gas, 462 U.S. 87 (Nos. 82-524, 82-545 & 82-551) (Apr. 18, 1983) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("The more difficult question is the lawfulness of the zero release assumption. I think the CA's decision must be reversed on this issue also, but on fairly narrow grounds. . . . Whoever writes this opinion will have much work to do and must take care not to paint with too broad a brush.").
212. Clerk Memorandum to Justice William J. Brennan, Jr. at 2, Baltimore Gas, 462 U.S. 87 (Nos. 82-524, 82-545 & 82-551) (on file with the Library of Congress, in The Brennan Papers, supra note 19) (Justice Brennan himself (rather than a clerk) appears to have penciled in, "I think they did exactly what he said they should do.")
213. Clerk Bench Memorandum to Justice Thurgood Marshall at 1, Baltimore Gas, 462 U.S. 87 (Nos. 82-524, 82-545 & 82-551) (Apr. 18, 1983) (on file with the Library of Congress, in The Marshall Papers, supra note 17) ("Tentatively, I agree with Judge Bazelon's analysis but disagree with his conclusion, and therefore recommend reversing on narrow grounds. . . . I tentatively learn [sic] toward the view that the NRC has itself adequately assessed the risks at the generic level.").
214. Baltimore Gas, 462 U.S. at 106-07 ("The Commission later amended the interim rule to clarify that health effects were not covered by Table S-3 and could be litigated in individual licensing proceedings. In the final rule, the Commission expressly required licensing boards to consider the socioeconomic and cumulative effects in addition to the health effects of the releases projected in the Table.").
215. According to Justice Brennan's notes on the conference of the Justices on Baltimore Gas, Justice Stevens, for example, was worried that "where have to cross reference so much material ought say forthrightly there are risks." Justice William J. Brennan, Jr., Conference Notes at 3, Baltimore Gas, 462 U.S. 87 (Nos. 82-524, 82-545 & 82-551) (on file with the Library of Congress, in The Brennan Papers, supra note 19).
216. Letter from Justice Sandra Day O'Connor to Justice William J. Brennan, Jr., Baltimore Gas, 462 U.S. 87 (Nos. 82-524, 82-545 & 82-551) (June 1, 1983) (on file with the Library of Congress, in The Brennan Papers, supra note 19).
217. Methow Valley, 490 U.S. at 335-36, 346-47. 268. Id. at 347 (quoting Methow Valley Citizens Council v. Reg'l Forester, 833 F.2d 810, 817 (9th Cir. 1987)).
218. Harvey Bartlett, Is NEPA Substantive Review Extinct, or Merely Hibernating? Resurrecting NEPA Section 102(1), 13 TUL. ENVTL. L.J. 411, 427 (2000) ("In the course of four decisions over a thirteen-year period beginning in 1976, the Supreme Court eroded this jurisprudence through a campaign of dicta. By the end of the thirteen years, NEPA substantive review was widely acknowledged as having become extinct.").
219. Methow Valley, 490 U.S. at 351.
220. Brief for the Petitioners, Methow Valley, 490 U.S. 332 (No. 87-1703) ("No one disputes that a federal agency can and should consider mitigation opportunities when assessing the environmental consequences of a proposed action. Indeed, the CEQ's implementing regulations direct that mitigation opportunities be considered and discussed during the preparation of an environmental impact statement.").
221. Clerk Memorandum to Justice Harry A. Blackmun at 1, Methow Valley, 490 U.S. 332 (No. 87-1703) (Mar. 21, 1989) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) (commenting on Stevens' draft opinion that "I should note, however, that on the mitigation issue JPS refrains from deciding the adequacy of the Environmental Impact Statement (EIS). Rather, he simply states that CA9 applied an incorrect legal standard (by asserting that the agency must engage in mitigation and by stating in detail what mitigation measures will be undertaken) and remands for further proceedings free from this legal error. JPS never indicates what [is] the correct legal standard for judicial review of a mitigation discussion in an EIS and, as already mentioned, never applies a standard to the EIS in this case")
222. Clerk Memorandum to Justice Harry A. Blackmun, Methow Valley, 490 U.S. 332 (No. 87-1703) (Apr. 24, 1989)
223. Clerk Memorandum to Justice Harry A. Blackmun Re: The Two NEPA Cases at 1, Methow Valley, 490 U.S. 332 (No. 87-1703) (Apr. 18, 1989) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("WJB is thinking of writing separately in these two NEPA cases. WJB is concerned that . . . the Court has not yet decided whether the mitigation discussion is adequate.").
224. Reply Brief for the Petitioners at 14, Marsh, 490 U.S. 360 (No. 87-1704) ("The parties agree . . . that the agency must prepare a supplemental environmental impact statement if the agency determines that the new information has 'significant' relevance or bearing on the proposed action or its effects.").
225. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 884 (1983) (quoting Calvert Cliffs' Coordinating Comm., Inc. v. Atomic Energy Comm'n, 449 F.2d 1109, 1111 (D.C. Cir. 1971)).
226. S. Utah Wilderness Alliance, 542 U.S. at 73. 317. 555 U.S. 7 (2008).
227. See Transcript of Oral Argument, Winter, 555 U.S. 7 (No. 07-1239), 2008 U.S. Trans. LEXIS 66, at 8. ("[W]e're not here arguing that, at this point, that we had no duty to prepare an environmental impact statement" in light of CEQ's emergency circumstances.).
228. Brief for Appellant-Petitioner at 21-33, Winter, 555 U.S. 7 (No. 07-1239).
229. Transcript of Oral Argument at 33, Monsanto, 130 S. Ct. 2743 (No. 09-475) (Counsel for Respondents Lawrence Robbins refuting the "more likely than not" suggestion of petitioners)
230. Brief for Natural Resources Defense Council et al. as Amici Curiae Supporting Respondents at 5-28, Monsanto, 130 S. Ct. 2743 (No. 09-475).
231. Outside of the context of NEPA, I have previously addressed the general issue of the impact of expert Supreme Court advocacy on the Court's docket and rulings. See Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar, 96 GEO. L. J. 1487, 1522-49 (2008).
232. See supra notes 126-31 and accompanying text. 353. See Michael Herz, Parallel Universes: NEPA Lessons for the New Property, 93 COLUM. L. REV. 1668, 1678 n.46 (1993)
233. Citizens for Balanced Env't & Transp. v. Coleman, 423 U.S. 870 (1975)
234. Nat'l Ass'n of Regulatory Util. Comm'rs v. F.C.C., 423 U.S. 836 (1975)
235. Edwards Underground Water Dist. v. Hills, 422 U.S. 1049 (1975)
236. Clinton Cmty. Hosp. Corp. v. S. Md. Med. Ctr., 422 U.S. 1048 (1975)
237. Sierra Club v. Hillis, 421 U.S. 994 (1975)
238. Saipan v. U.S. Dep't of Interior, 420 U.S. 1003 (1975)
239. Tewa Tesuque v. Morton, 420 U.S. 962 (1975)
240. Cal. Highway Comm'n, Dept. of Pub. Works v. Keith, 420 U.S. 908 (1975)
241. Md.-Nat'l Capital Park & Planning Comm'n v. Simon, 419 U.S. 1069 (1974)
242. Zlotnick v. D.C. Redevelopment Land Agency, 419 U.S. 963 (1974)
243. San Diego Gas & Elec. Co. v. Fed. Power Comm'n, 419 U.S. 882 (1974)
244. Morningside Renewal Council, Inc., v. U.S. Atomic Energy Comm'n, 417 U.S. 951 (1974)
245. Portland Cement Corp. v. Adm'r E.P.A., 417 U.S. 921 (1974)
246. Nat'l Helium Corp. v. Morton, 416 U.S. 993 (1974)
247. Envtl. Def. Fund, Inc. v. Stamm, 416 U.S. 974 (1974)
248. Appalachian Power Co. v. EPA, 416 U.S. 969 (1974)
249. Life of the Land v. Brinegar, 416 U.S. 961 (1974)
250. Citizens Envtl. Council v. Brinegar, 416 U.S. 936 (1974)
251. Hanly v. Saxbe, 416 U.S. 936 (1974)
252. Save Our Cumberland Mountains Inc. v. Tenn. Valley Auth., 414 U.S. 1108 (1973)
253. Sullivan v. Brinegar, 414 U.S. 855 (1973)
254. Envtl. Def. Fund, Inc. v. Corps of Eng'rs of U.S. Army, 412 U.S. 931 (1973)
255. Hanly v. Att'y Gen. of U.S., 412 U.S. 908 (1973)
256. Morton v. Wilderness Soc'y, 411 U.S. 917 (1973)
257. Getty Oil Co. (E. Operations) v. Ruck-elshaus, 409 U.S. 1125 (1973)
258. Hackensack Meadowlands Dev. Comm'n v. Transcon. Gas Pipe Line Corp., 409 U.S. 1118 (1973)
259. Bradford Twp. v. Ill. State Toll Highway Auth., 409 U.S. 1047 (1972)
260. Fugate v. Arlington Coal. on Transp., 409 U.S. 1000 (1972)
261. Hanly v. Kleindienst, 409 U.S. 990 (1972)
262. Fed. Power Comm'n v. Greene Cnty. Planning Bd., 409 U.S. 849 (1972)
263. Scenic Hudson Pres. Conference v. Fed. Power Comm'n, 407 U.S. 926 (1972)
264. See Upper Pecos Ass'n. v. Peterson, 406 U.S. 944 (1972) (granting certiorari)
265. Upper Pecos Ass'n v. Peterson, 409 U.S. 1021 (1972) (dismissing the petition on mootness grounds).
266. See Coleman v. Conservation Soc'y of S. Vt., Inc., 423 U.S. 809 (1975).
267. William O. Douglas, America's Vanishing Wilderness, LADIES HOME J., July 1964, at 37
268. James F. Simon, William O. Douglas, in THE WARREN COURT: A RETROSPECTIVE 211, 213-14 (Bernard Schwartz ed., 1996) (noting that Douglas "appeared to have little interest in the craft of judging").
269. In Sierra Club v. Morton, 405 U.S. 727 (1972), Justice Douglas's files indicated that he declined to vote on whether to grant review because of his long history with the Sierra Club.
270. See Memo on WOD and the Sierra Club, Sierra Club v. Morton, 405 U.S. 727 (No. 70-34) (on file with the Library of Congress, in The Douglas Papers, supra note 16) (describing Douglas's relationship with the Sierra Club from 1959 until 1970)
271. Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981)
272. Hodel v. Indiana, 452 U.S. 314 (1981)
273. Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981)
274. Train v. Colo. Pub. Interest Research Grp., Inc., 426 U.S. 1 (1976)
275. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).
276. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 228 (1980) (Marshall, J., dissenting)
277. Kleppe v. Sierra Club, 427 U.S. 390, 415 (1975) (Marshall, J., concurring in part and dissenting in part)
278. Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776, 778 (1976).
279. Cert Pool Memorandum at 1, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (Dec. 1, 1975) (on file with Washington and Lee University, in The Powell Papers, supra note 18) (Powell clerk, in handwritten notes, commenting "[t]his case seems a good opportunity to explore the farthest reaches of NEPA").
280. Clerk Memorandum to Justice Harry A. Blackmun, Proposed Opinion for the Court by Justice Marshall at 1, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (June 3, 1976)
281. on file with the Library of Congress, in The Blackmun Papers, supra note 20.
282. U.S. at 787-88. 397. Id. at 788-91. 398. Brief for the Petitioners at 10-12, Flint Ridge, 426 U.S. 776 (No. 75-545).
283. 426 U.S. at 787 (quoting 42 U.S.C. § 4332).
284. Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1111 (D.C. Cir. 1971).
285. See, e.g., California v. Block, 690 F.2d 753, 775 (9th Cir. 1982)
286. Pub. Serv. Co. v. U.S. Nuclear Regulatory Comm'n, 582 F.2d 77, 81 (1st Cir. 1978).
287. Flint Ridge, 426 U.S. at 792. 403.
288. See Clerk Bench Memorandum to Justice Harry A. Blackmun at 16, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (Apr. 23, 1975) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("The statute on its face gives not the slightest hint that environmental considerations bear on the Secretary's decision. . . . The purpose of the statement of record is disclosure, and the completeness and accuracy of disclosure is the Secretary's only concern. Inaccuracy or incompleteness are the only grounds on which the statement may be rejected. As far as we can tell from the statute, the environmentally most disastrous real estate development in the world would have to be approved, so long as the statement of record fully and accurately disclosed the environmental disaster.")
289. Id. at 770. 407. See Walter Dellinger, In Memoriam: William H. Rehnquist, The Man Who Devised the Natural Law of Federalism, SLATE (Sep. 4, 2005, 12:08 PM), http://www.slate.com/id/2125685
290. Uncommon Knowledge: Holding Court: The Legacy of the Rehnquist Court (Hoover Institution broadcast May 26 2005), available at http://www.hoover.org/ multimedia/uk/2939316.html interviewing Kathleen Sullivan, who stated that "[Rehnquist] may be the greatest Chief Justice since Chief Justice Marshall").
291. See Draft Opinion Circulated by Justice Thurgood Marshall at 10, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (June 1, 1976) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
292. (quoting Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1115 (D.C. Cir. 1971)).
293. ("The Secretary therefore has authority to adopt rules requiring developers to incorporate a wide range of environmental information into property reports . . . and respondents may request the Secretary to institute a rulemaking proceeding to consider the desirability of ordering such disclosure." (citing Natural Resources Defense Council, Inc. v. SEC, 389 F. Supp. 689 (D.D.C. 1974))).
294. There were references to the SEC district court ruling in the cert-pool memo recommending certiorari, and the case had also apparently been mentioned during conference deliberations. See Justice Lewis F. Powell, Docket Sheet, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (Dec. 5, 1975) (on file with Washington and Lee University, in The Powell Papers, supra note 18)
295. Cert Pool Memorandum, supra note 394, at 6, 9. 412. Draft Opinion Circulated by Justice Thurgood Marshall, supra note 408, at 13. 413. Id. at 1 (listing the date of circulation of the draft opinion as June 1st, 1976).
296. Letter from Justice William H. Rehnquist to Justice Thurgood Marshall, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (June 2, 1976)
297. on file with the Library of Congress, in The Blackmun Papers, supra note 20.
298. Letter from JusticeWilliam H. Rehnquist to Justice Thurgood Marshall, supra note 414, at 4. 420. Letter from Justice Potter Stewart to Justice Thurgood Marshall, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (June 2, 1976)
299. Letter from Justice Thurgood Marshall to Justice William H. Rehnquist, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (June 3, 1976) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
300. Letter from Chief Justice Warren E. Burger to Justice Thurgood Marshall, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (June 10, 1976)
301. Letter from Justice William H. Rehnquist to Justice Thurgood Marshall at 2, Flint Ridge, 426 U.S. 776 (Nos. 75-510 & 75-545) (June 4, 1976) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("I do not doubt that eminently reasonable minds may differ on this point, as our exchange of correspondence testifies. But if you cannot see your way clear to deleting these two portions of your opinion, please show me as concurring in the result.").
302. Flint Ridge, 426 U.S. 776 (1976).
303. Letter from Justice William H. Rehnquist to Justice Thurgood Marshall, supra note 414
304. Letter from Justice William H. Rehnquist to Justice Thurgood Marshall, supra note 424
305. Letter from Justice William H. Rehnquist to Justice Thurgood Marshall, Flint Ridge, 426 U.S. 776 75-510 (75-545) (June 18 1976)
306. see Clerk Memorandum to Justice Harry A. Blackmun Flint Ridge, 426 U.S. 776 (75-510 & 75-545) (June 18 1976)
307. See Gillian E. Metzger, The Story of Vermont Yankee: A Cautionary Tale of Judicial Review and Nuclear Waste, in ADMINISTRATIVE LAW STORIES 124 (Peter L. Strauss ed., 2006).
308. C.F.R. § 1502.14 (2011).
309. See, e.g., Alaska v. Andrus, 580 F.2d, 465, 472-76 (D.C. Cir. 1978) (challenging as inadequate an alternative analysis)
310. Natural Res. Def. Council, Inc. v. Callaway, 524 F.2d 79, 92-96 (2d Cir. 1975) (same)
311. Davis v. Coleman, 521 F.2d 661, 681-82 (9th Cir. 1975) (same)
312. Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 834-38 (D.C. Cir. 1972) (declining to summarily reverse district court ruling that agency NEPA alternative analysis was inadequate).
313. See Justice William J. Brennan, Jr., Memorandum to the Conference, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Jan. 12, 1978)
314. Justice William J. Brennan, Jr., Memorandum to the Conference, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Feb. 10, 1978) (on file with the Library of Congress, in The Brennan Papers, supra note 19) (attaching revised draft per curiam opinion).
315. Justice William J. Brennan, Jr., Memorandum to the Conference, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Feb. 10, 1978)
316. See Letter from Justice William H. Rehnquist to Justice William J. Brennan, Jr., Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Jan. 17, 1978)
317. Letter from Justice William H. Rehnquist to Justice William J. Brennan, Jr., Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Feb. 10, 1978)
318. Memorandum of Mr. Justice Rehnquist, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Feb. 24, 1978) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
319. Letter from Justice William J. Brennan, Jr. to Justice William H. Rehnquist at 1, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Feb. 27, 1978) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
320. Letter from Justice Potter Stewart to Justice William H. Rehnquist, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Mar. 16, 1978) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
321. Letter from Justice William H. Rehnquist to Justice William J. Brennan, Jr. at 1, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Feb. 27, 1978) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("I think I can make some of the accommodations which you specify in your letter, but am more doubtful about some of the others.")
322. Letter from Justice William H. Rehnquist to Justice Thurgood Marshall, Vermont Yankee, 435, U.S., 519, 76-419 & 76-528, Mar. 6 (1978) (on file with the Library of Congress, in The Blackmun Papers, supra note 20) ("I do not think we are far apart in substance . . . . Since I am dictating this in the office on Saturday, and I really do not know how our filing system works, I cannot locate the earlier draft.").
323. Letter from Justice William J. Brennan, Jr. to Justice William H. Rehnquist, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Mar. 20, 1978) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
324. Letter from Justice William J. Brennan, Jr. to Justice William H. Rehnquist, Vermont Yankee, 435 U.S. 519 (Nos. 76-419 & 76-528) (Mar. 27, 1978) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
325. 435 U.S. at 538. The "essentially procedural" dictum in Vermont Yankee was sufficiently unpopular with CEQ that as a summer intern at CEQ the summer immediately after the Court decided Vermont Yankee, one of my jobs was to review draft NEPA appellate briefs written by the U.S. Department of Justice and to suggest the deletion in those briefs of any reliance on the "essentially procedural" language. 450. 444 U.S. 223, 227-28 (1980).
326. See supra section II.B.7. 452. The Court's conference was held on Friday, November 5th, and Justice Rehnquist circulated his draft opinion on November 13th. See supra notes 211-17 and accompanying text. In 1979, November 5th was a Monday, November 10th and 11th a Saturday and Sunday, and Monday, November 12th was Veteran's Day, a federal holiday on which the Court is closed. 453. Five Justices joined Rehnquist's draft opinion on November 14th, and two additional Justices joined on November 15th. See supra notes 211-17 and accompanying text. 454. 444 U.S. at 227. 455. Cert Pool Memorandum at 5, Strycker's Bay, 444 U.S. 223 (Nos. 79-168 & 79-181) (Oct. 19, 1979) (on file with the Library of Congress, in The Blackmun Papers, supra note 20).
327. See supra notes 218-23 and accompanying text. 457. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23 (2008) ("Instead, NEPA imposes only procedural requirements . . . .")
328. Dep't of Transp. v. Public Citizen, 541 U.S. 752, 756 (2004) ("Rather, NEPA imposes only procedural requirements on federal agencies . . . .").
329. NICHOLAS C. YOST, NEPA DESKBOOK 24 (2d ed. 1995) ("Early in NEPA's development there were considerable indications that the judiciary would go beyond procedure and show a greater willingness to conduct substantive review of final agency decisions.").
330. MATHEW J. LINDSTROM & ZACHARY A. SMITH, THE NATIONAL ENVIRONMENTAL POLICYACT: JUDICIAL MISCONSTRUCTION, LEGISLATIVE INDIFFERENCE, & EXECUTIVE NEGLECT 119 (2001) ("In Strycker's Bay . . . the Supreme Court effectively killed any possibility of judicial enforcement of NEPA's substantive goals.").
331. Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983).
332. See Lazarus, supra note 346.