Presidential and Judicial Politics in Environmental Litigation

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.