DEFYING THE LAW: NORTHERN PLAINS RESOURCE COUNCIL, INC. V. SURFACE TRANSPORTATION BOARD AND THE STATE OF NEPA JURISPRUDENCE

Note Written By: Rachel Shelton

As concern mounts over how to address the world's increasingly severe environmental issues, it is important to examine the United States' current policies. For over forty years, the touchstone of American environmental policy has been the National Environmental Policy Act of 1969 ("NEPA"). The language of the Act is sweeping and employs a tone suggesting that the federal government will carefully consider the environmental impacts of its actions.

Whatever the aims of NEPA may have been, interpretation of the Act in the court system has endowed it with little substantive purpose. Specifically, the Supreme Court has construed NEPA narrowly, as a procedural law with little ability to have a substantive effect on environmental policy. Department of Transportation v. Public Citizen, a 2004 Supreme Court decision, reflects this statutory interpretation and stands as the current state of the law.

This Note will examine the Ninth Circuit's 2011 decision in Northern Plains Resource Council, Inc. v. Surface Transportation Board, which exceeds the narrow boundaries of the Supreme Court's NEPA jurisprudence, yet honors the substantive values advanced by the text of the Act. Part I introduces the structure of the National Environmental Policy Act of 1969. Part II then considers the various ways in which courts have interpreted the Act, focusing on the trigger for action under NEPA, the relevance of various environmental effects, and the "rule of reason" analysis. Part III provides an in-depth examination of the Ninth Circuit's decision in Northern Plains. Finally, Part IV concludes by proposing that, regardless of whether the decision comports with Supreme Court jurisprudence, the Ninth Circuit's all-encompassing decision is faithful to NEPA's purpose and should be adopted by the courts.

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