Research Assistant Opportunity, Summer 2014

Research Assistant Opportunity

NEPA Litigation Project

David E. Adelman
Harry Reasoner Regents chair in Law
The University of Texas School of Law

Recruiting for Summer 2013

Contact: David Adelman

The National Environmental Policy Act (NEPA) is often referred to as the “Magna Carta” of U.S. environmental law.  It marked a dramatic change in U.S. environmental policy and represented the first in a series of transformative environmental laws passed by Congress in the 1970s.  NEPA is distinctive in that it imposes only procedural requirements—as opposed to substantive standards—and broadly encompasses federal actions that “significantly impact” the environment, which can range from timber sales, to funding new highways, to implementing trade agreements, to military actions.  The intuition behind the law is simple—if federal agencies are required to identify the
environmental impacts of their projects and to examine options for mitigating them, they will be more likely to avoid environmentally destructive actions.  Information generated through the NEPA process also facilitates
public oversight of federal actions.  NEPA’s influence has been global because its framework for environmental reviews, exemplified by detailed “environmental impact statements,” has become a model for environmental
policies in more than 150 countries.

Over the past decade or so, legal scholarship has been greatly influenced by economic research methods and has increasingly incorporated sophisticated empirical methods.  However, the adoption of these methods has been uneven, with a disproportionate share of empirical studies occurring in certain fields of legal scholarship (e.g., intellectual property, corporations, torts).  While environmental law has been deeply influenced by scholarship at the intersection of law and economics, this work has not extended to empirical studies of litigation and has only recently included empirical work on rulemaking by federal agencies (i.e., issuance of regulations).  The proposed project would be among the first empirical studies of environmental litigation to utilize methods beyond descriptive statistics, and the first comprehensive study of litigation under NEPA.  This kind of work is long overdue, but one benefit to the lag in
empirical environmental scholarship is that the study design will benefit from work in other fields of law.  Recent studies of patent litigation, in particular, will provide valuable models for the study proposed here.

Legal scholarship tends to focus heavily on cases issued by the U.S. Supreme Court and the Courts of Appeals.  In any given year, the Courts of Appeals collectively rule on about 20 cases that address issues under NEPA; the Supreme Court has issued just 17 opinions on NEPA claims since 1970.  Even granting the lesser precedential value of their opinions, the great majority of NEPA litigation occurs in the U.S. District Courts.  This project will collect comprehensive data on NEPA litigation in each of the three levels of the U.S. courts.  The data we plan to collect will encompass information on litigants and judges/circuits, the duration of litigation, the issues litigated (including success and failure rates), and the types of remedies and outcomes.  These data will enable us to examine patterns of litigation over time, to assess conventional wisdom about the importance of specific NEPA procedures, to evaluate differences in NEPA compliance across federal agencies, and to analyze litigation strategies and impacts.  Given the tractable number of cases filed, roughly 100-150 annually, constructing the data base is a readily achievable objective.  This work will be of broad significance to scholars working on environmental law and policy, officials in federal agencies, and policymakers, as well as lawyers in non-governmental organizations and private practice.