[85WashLRev0045] Accountability for Mitigation Through Procedural Review: The NEPA Jurisprudence of Judge Betty B. Fletcher, a Trustee of the Environment and Woman of Substance (2010)

Abstract: 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. INTRODUCTION The National Environmental Policy Act of 19691 (NEPA) has often been called our nation's environmental Magna Carta. NEPA's structure and language are constitutional in character. Widely recognized as the world's first comprehensive statement of environmental policy, NEPA became a model for environmental policy and law around the globe. NEPA has and may continue to have as much impact as any environmental statute in history, even as we move into the twenty-first century challenge to confront global climate change.2 Ninth Circuit Court of Appeals Judge Betty Binns Fletcher has profoundly understood and has steadfastly defended NEPA as our nation's fundamental dempcratic response to respecting the earth and all the inhabitants thereof. For thirty years, she has strictly interpreted the law in accordance with its stated purpose: to achieve harmony between people and nature. As the judges who first required compliance with NEPA's mandates retired or died - such as William O. Douglas and Thurgood Marshall on the Supreme Court, and Skelly Wright and Harold Leventhal on the D.C. Circuit Court of Appeals - the First and Ninth Circuits became the most stalwart keepers of NEPA's flame. As we enter the new millennium, one judge stands out as the leading judicial interpreter of our nation's environmental charter and its relevance to current issues: Judge Fletcher of the Ninth Circuit. While some federal agencies and courts seek to relegate NEPA to the dustbin (perhaps recycling box) of a paperwork exercise, Judge Fletcher has thoughtfully developed a NEPA jurisprudence that points the way to focus on the statute's substantive goals, while respecting the procedural review role of the courts. As might be expected by her fans and critics alike, she has applied a rigorous analysis whose logic does not readily leave room for dissent. Even when Judge Fletcher's decisions are reversed or when she is writing a minority opinion, those with whom she disagrees often use or borrow heavily from her legal analysis and differ instead on the interpretation of the facts. NEPA was passed by Congress in 1969, and we commemorate its fortieth anniversary this year.3 Judge Fletcher was confirmed a decade later in 1979, and we honor her thirtieth anniversary on the bench this year. These milestones represent remarkable longevity for a statute and a judge. Despite this passage of time, in 2008 alone Judge Fletcher authored two landmark decisions on NEPA's role on our society's response to climate change and to the plight of our oceans and their species. …