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In my Garrison Lecture three years ago, I surveyed the environmental law decisions of the Supreme Court between 1970 and 1999. I commented on which Justices had been more or less influential in shaping the Court's decisions and, even more provocatively (if not foolishly), sought to "score" the individual Justices on their responsiveness to environmental protection concerns based on their votes cast in a subset of those cases. The broader thesis of the lecture, however, was that there is something distinctively "environmental" about environmental law and that the Court's increasing inability to appreciate that dimension was leading to more poorly-reasoned decisions and results. Pace has now provided me with the luxury to revisit my earlier conclusions with the benefit of three additional years of hindsight. To that end, this update addresses three topics. First, it considers whether the opinion assignments and votes of individual Justices during the past three years either reinforce or undermine my prior assessment. Second, the update surveys the most significant environmental law decisions of the past three years and considers their portent for the possible restoration of what is "environmental" about environmental law in the Court. Third and finally, the update identifies important legal issues now looming before the Court.

Publication Citation

19 Pace Envtl. L. Rev. 653-674 (2002)