Washington Law Review


In the past thirty years, as judges who first required compliance with the mandates of the National Environmental Policy Act of 1969 retired or died, the First and Ninth Circuits became the most stalwart keepers of NEPA’s flame. This article explores how, despite the procedural characterization of NEPA, Judge Betty B. Fletcher of the Ninth Circuit has been able to focus attention on NEPA’s substantive goal of achieving productive harmony between people and nature, while respecting the limits of judicial review of executive action. Judge Fletcher insists public officials answer a simple question: If you are not well-informed about whether environmental harm will occur, how can you have given the proposal a “hard look”? Judge Fletcher holds United States government officials accountable when making decisions affecting people and nature—accountable to prepare and fully disclose the required studies, so the democratic process of civic and civil debate can occur; accountable to search for better alternatives; and perhaps most important, accountable to any promises they make that their actions will not harm environmental quality for present and future generations. This is the jurisprudence Judge Fletcher has bequeathed to the United States, and to those around the world who look to the United States and NEPA for leadership on environmental stewardship.

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