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NEPA: Not So Well at Twenty

May 1990

Citation: 20 ELR 10174

Issue: 5

Author: Antonio Rossmann

Last year the Supreme Court in Robertson v. Methow Valley Citizens Council1 and Marsh v. Oregon Natural Resources Council2 extended its perfect record in National Environmental Policy Act (NEPA)3 jurisprudence: in the 20 years since NEPA was enacted, the High court has never written to expand NEPA's application and has consistently narrowed or reversed generous rulings by the courts of appeals. In essence, for two decades the Justices have never gotten it right.4

Professor Mandelker in these pages last September argued that Methow Valley and Oregon Natural Resources prove "NEPA Alive and Well."5 As a Westerner who believes the Ninth Circuit generally knows how to look after the resources within its jurisdiction,6 this writer disagrees. The Supreme Court's 1989 decisions unnecessarily threw out sound resolutions of those two disputes, rejected models of pragmatic environmental accountability, discouraged agency initiative to enhance the federal trusteeship over environmental values, and (not unimportant to the citizen-respondents) facilitated the probable destruction of rare natural splendor.

Mr. Rossmann is a lecturer at Stanford Law School and has been a practitioner of resources and environmental law since 1972. He has litigated many leading cases under NEPA and CEQA.

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