Presidential and Judicial Politics in Environmental Litigation

50 Ariz. St. L.J. 3 (2018). David E. Adelman & Robert L. Glicksman.

This Article assesses the impact of judicial review on one of the nation’s foundational environmental statutes, the National Environmental Policy Act (“NEPA”). Based on litigation spanning fifteen years, we find that the stringency of judicial review is driven by the interaction of judicial ideology and presidential politics. Our principal findings are two-fold: First, judicial ideology, here defined by political party affiliation, is most influential when NEPA’s environmental goals conflict with the politics of the presidential administration in power. Second, the influence of judicial ideology is mediated by the distribution of cases across federal circuits and the ideological balance of judges within them; specifically, the concentration of NEPA cases in the Ninth Circuit, where liberal appellate judges are in the majority. Under well-defined conditions, we find that judicial review is most demanding when the risk of statutory subversion is greatest—that is, when the politics of an administration conflict with the purpose of the governing statute.

The normative and practical implications of these observations are illustrated by comparing NEPA with the expanding array of legal mandates that prescribe elaborate economic cost-benefit analyses. Most recently, the Trump Administration has issued a raft of executive orders and Congress is considering new legislation that augment the economic reviews required under existing laws and regulations. Understanding the interplay between presidential politics and judicial review provides new grounds for concern that, unlike NEPA, the pending statutes could seriously disrupt and delay agency decision-making processes. Further empirical study of judicial review under a range of statutes is needed to determine how broadly our findings apply to judicial review of agency action across the federal government.

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