Betty B. Fletcher: NEPA's Angel and Chief Editor of the Hard Look
14 Pages Posted: 25 Oct 2012 Last revised: 19 Jul 2014
Date Written: March 1, 2010
The underpinnings of modern environmental law rest comfortably on assumptions of a creative, active, thorough, and demanding judicial review. The judicial founders — and expounders — of environmental law were relentless practitioners of what became known as the “hard look” doctrine of judicial review. This was the stance of the great first judges of environmental law — they included David Bazelon, Harold Leventhal, and J. Skelly Wright — and this was the posture of those who came later — including the much admired Patricia Wald. This tradition of a meaningful hard look has been carried on — and extended — by many contemporary jurists, including Betty B. Fletcher of the U.S. Court of Appeals for the Ninth Circuit. In this review of the decisionmaking of Judge Fletcher, the environmental version of the hard look is on conspicuous display. And it stands in stark contrast to the “values” of lassitude, passivity, timidity, hesitation, and trusting acceptance that pass for “judicial review” in the new world celebrated by sorry precedents, such as Lands Council v. McNair.
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