The proper role of the courts in our system of government has long been the source of considerable controversy. The environmental law decisions of the United States Supreme Court illustrate the opportunities for, and implications of, the exercise of judicial activism and restraint in the regulatory context. Beginning in the late 1960s, Congress enacted a series of statutes intended, sometimes at the expense of economic efficiency, to prevent environmental degradation and to force improvements in pollution control technology. Perceiving administrative reluctance to implement these laws, the Supreme Court in the 1960s and early 1970s exercised its power broadly to ensure the realization of a pro-environment policy. This judicial activism was supported by commentators who argued that environmental interests were underrepresented in the regulatory process and that judicial intervention was necessary to counterbalance the powerful interests favoring industrial development at the expense of environmental protection. More recently, the Supreme Court appears to have retreated from this activism by emphasizing judicial restraint in its environmental decisions. Proponents of judicial restraint assume this shift has limited the Court’s power to implement its own policy preferences. Under this presumed limitation the Court’s decisions simply reflect the environmental policies of other governmental institutions. These recent Supreme Court decisions, however, reflect a trend seemingly at odds with congressional policy, reaching pro-development results far more often than pro-environment results. While this shift may reflect the exercise of judicial restraint toward governmental institutions other than Congress that have pursued a development-oriented policy, the shift also may be the result of the Court’s own pro-development policy. This latter possibility draws into question the traditional assumption that judicial restraint prevents the Court from implementing its own policy choices.
This Article concludes that, despite its ostensible adherence to principles of judicial restraint, the Supreme Court has pursued a policy far less protective of the environment than the policy intended by Congress. A detailed analysis of the Court’s environmental decisions since 1976 supports this conclusion. To frame this analysis, the Article examines the concepts of judicial activism and judicial restraint and distinguishes between ‘institutional’ and ‘policy’ based activism and restraint. It then describes the institutional and policy implications of judicial oversight of the implementation of regulatory programs in general, and of environmental regulation in particular. The article then gathers the Court’s environmental law decisions and divides them into three broad categories: those concerning substantive review of environmental policy decisions made by federal agencies; those involving judicial remedies that supplement administrative enforcement of environmental statutes; and those addressing procedural opportunities for private parties to pursue environmental protection goals at the agency level and before the courts. Analysis of these decisions demonstrates a marked shift in the policy outcomes reached by the Court, and two reasons why the alleged exercise of judicial restraint has not prevented the Court from pursuing a pro-development policy. First, the Court has invoked principles of judicial restraint toward administrative agencies to justify decisions with pro-development consequences that are inconsistent with congressional intent. Second, the Court at times has engaged in judicial activism that produced pro-development results. In short, despite its emphasis on judicial restraint, the Supreme Court has been making environmental policy—a pro-development policy contrary to the pro-environment policy chosen by Congress.
Robert L. Glicksman & Richard E. Levy, Judicial Activism and Restraint in the Supreme Court's Environmental Law Decisions, 42 Vand. L. Rev. 343 (1989).