Is the Supreme Court Irrelevant--Reflections on the Judicial Role in Environmental Law

Federal environmental law is over a quarter century old, dating from the passage of the National Environmental Policy Act (NEPA) in 1969 and the Clean Air Act (CAA)2 in 1970. Since then, the Supreme Court has decided roughly two or three environmental law cases per year-or somewhere between fifty and one hundred cases altogether.3 To assess the Court's relevance, imagine that all those cases were wiped off the books. If the Court had never granted certiorari in a single environmental case, would the Environmental Protection Agency (EPA) or other federal agencies operate any differently? Would firms be subject to different federal regulations? In short, how different would environmental protection be today? The answer, according to my thesis, is "not much." During the past twenty years, the Court's decisions have not substan-