Judging NEPA: A "Hard Look" at Judicial Decision Making Under the National Environmental Policy Act

Jay E. Austin, John M. Carter II, Bradley D. Klein and Scott E. Schang
Date Released
December 2004
Judging NEPA: A "Hard Look" at Judicial Decision Making Under the National Envir

This new report shows that federal judges’ political affiliation may be a decisive factor in determining the outcome of cases brought under the nation’s premier environmental law. The study of recent litigation under the National Environmental Policy Act (NEPA), which governs a wide variety of federal agency actions that affect pollution control, natural resources, and public lands, reveals a wide division between appointees of Democratic and Republican presidents in rulings in these cases.

Americans have long assumed that federal judges hear cases without reflecting the leanings of the political party that put them on the bench. Several recent academic studies of the relationship between party affiliation and judicial decisions have questioned that assumption. ELI’s report, which builds on this work by examining one category of environmental cases, suggests that environmental impact assessment lawsuits are sensitive to the presiding judges’ political views.

ELI researchers reviewed 325 NEPA cases decided in federal trial and appellate courts from January 21, 2001 through June 30, 2004. In federal district courts, the study found that a plaintiff with pro-environmental goals had less than half the chance of success before a Republican-appointed judge (28%) than before a Democratic appointee (59%). Conversely, plaintiffs with pro-development or industry goals were successful only 14% of the time before Democratic appointees, but 58%--over four times as often--before Republican appointees.

Further, in the 23 cases decided so far by President George W. Bush’s district court appointees, environmental plaintiffs successfully advanced NEPA claims in just 4 instances. Although it is too early to draw definitive conclusions about this trend, it represents a 17% success rate that is well below the average for all Republican appointees (28%), and less than half of the historical and current NEPA success rate before all judges (46%).

Similar results were observed in the federal courts of appeals, where cases are argued before three-judge panels. From January 2001 through June 2004, environmental plaintiffs in NEPA cases enjoyed a 52% chance of success before panels composed of two Democratic appointees and one Republican appointee, and a 75% success rate before panels composed of three Democratic appointees. But if those plaintiffs drew a panel with two or three Republican-appointed jurists, their chances were one in ten.

The National Environmental Policy Act is often referred to as the “backbone” of federal environmental law. It requires agencies to document and consider the environmental impacts of major government projects and to seek public input before they are carried out. Recent NEPA cases governed the management of over 40 million acres of public forest, whether snowmobiles should be allowed access to Yellowstone National Park, the construction or removal of dams, opening public lands to oil and gas development, and many other critical environmental issues. Because NEPA is enforced almost exclusively through lawsuits brought by citizens and public watchdog groups, the judiciary plays a central role in the law’s implementation.