In Praise of Dan Mandelker’s NEPA Wisdom

Professor Mandelker has continued to illuminate regulatory takings jurisprudence and the related area of substantive due process since the publication of that Festschrift volume in 2000.³ Having weighed in on the value of his analysis of takings issues, I would like to take this opportunity to address a different area—one on which Mandelker is perhaps the nation’s leading expert—the National Environmental Policy Act (NEPA).⁴

The U.S. Environmental Magna Carta

Dan Mandelker has long touted NEPA’s environmental protection potential. He has characterized it as “an environmental Magna Carta that has profoundly influenced decision making by federal agencies.”⁵ At least one court has adopted that depiction of NEPA, citing Dan for that proposition.⁶

NEPA enunciates a national policy of “encourag[ing] productive and enjoyable harmony between man and his environment” and “promot[ing] efforts which will prevent or eliminate damage to the environment.”⁷ It recognizes the federal government’s continuing duty to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations” and to “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.”⁸ NEPA is designed to ensure that federal agencies “stop and think” about the potential impacts of their decisions on the natural environment and publicly disclose the results of those deliberations.⁹ The statute’s principal mandate is the obligation of every federal agency to prepare an environmental impact statement (EIS) to accompany a proposal for “major Federal actions significantly affecting the quality of the human environment.”¹⁰

The Supreme Court has firmly established that NEPA’s mandates are entirely procedural; it has no substantive component.¹¹ Opinions differ on the value of the processes that NEPA imposes on federal agencies. The Council on Environmental Quality (CEQ), which NEPA created to oversee implementation of the statute by other federal agencies,¹² has credited the Act with playing an important role in improving the environmental performance of the federal government. In a retrospective prepared on the occasion of NEPA’s twenty-fifth anniversary, CEQ remarked:

NEPA is a success—it has made agencies take a hard look at the potential environmental consequences of their actions, and it has brought the public into the agency decision-making process like no other statute. In a piece of legislation barely three pages long, NEPA gave both a voice to the new national consensus to protect and improve the environment, and substance to the determination articulated by many to work together to achieve that goal.¹³

CEQ added, however, that “NEPA’s implementation at times has fallen short of its goals” as a result of factors that include “agencies sometimes engag[ing] in consultation only after a decision has—for all practical purposes—been made,” and agencies “sometimes confus[ing] the purpose of NEPA” and “acting as if the detailed statement called for in the statute is an end in itself, rather than a tool to enhance and improve decision-making. As a consequence, the exercise can be one of producing a document to no specific end.”¹⁴ CEQ concluded that “NEPA is critical to meeting the environmental, social, and economic goals this Nation has set for itself,” but that “[s]ubstantial opportunities exist to improve the effectiveness and efficiency of the NEPA process.”¹⁵

Professor Dan Mandelker and NEPA

Professor Mandelker has provided his own assessments of NEPA over the years. In 1989, as NEPA approached its twentieth anniversary, he published an article declaring NEPA to be “alive and well.”¹⁶ He interpreted two then-recent Supreme Court decisions,¹⁷ notwithstanding the defeats they handed to environmental public interest litigants, as “a clear endorsement of [NEPA’s] objectives and purposes,” and as a caution to courts “to take their judicial review powers seriously.”¹⁸

Twenty years later, in 2009, Professor Mandelker provided another NEPA report card, which described NEPA as “a statute that requires a freewheeling and extensive analysis of the environmental impacts of agency actions and programs.”¹⁹ He acknowledged that observers had provided “mixed answers” to the question of whether agency responses to NEPA had improved environmental decision-making. His own view was that NEPA had “a modest influence, not only on agency decisions but on the process through which they are made and the type of personnel brought in to help make them. The addition of environmental specialists is an important outcome.”²⁰ Mandelker did not see the need for reviving debate over whether NEPA should be infused with substantive content, arguing that a conclusion that an EIS violated NEPA’s procedural dictates “can have just as much impact on an agency’s decision as a conclusion that the decision is substantively wrong. . . . The difference is that the agency has the opportunity to go back and try again.”²¹ He regarded NEPA as “a major innovation in requirements for agency decision-making that, for the first time, made environmental values a part of every decision-making process. Making NEPA substantive, however, does not make it more effective as the nation’s Magna Carta environmental law.”²²

The next year, as part of a symposium held at the Washington University School of Law on New Directions in Environmental Law, Mandelker offered a somewhat more sobering assessment of NEPA.²³ He pointed out that the recognition that environmental systems are “complex, dynamic, nonlinear, and mutually [interdependent]” made the process of environmental prediction that is at NEPA’s core more difficult than its framers had anticipated.²⁴ He added that “[a] statute and its regulations that assumed a more predictive and less complicated environment do not work well in an environment that has multiple ecological dimensions where change is not easily measured.”²⁵ Mandelker also criticized the NEPA process as unnecessarily “complicated and redundant” and “subject to abuse.”²⁶ He also lamented that “NEPA analysis often is piecemeal and does not consider the wider environment in which a project will be carried out.”²⁷ Despite these criticisms, Mandelker retained his admiration for NEPA. He sought not to bury NEPA but to improve it. He concluded that “NEPA is a major environmental statute that has contributed its weight to the protection of the environment. Attention to implementation and structural problems that determine NEPA’s reach and effectiveness will make its promise of environmental disclosure more effective.”²⁸

In addition, to these overarching assessments of NEPA’s role in improving environmental decision-making by federal agencies, Professor Mandelker has opined on specific NEPA issues and practices. He analyzed the extent to which agencies must consider growth-induced land development as an indirect effect.²⁹ He also weighed in on the impact of state “little NEPA” statutes on land-use planning.³⁰ Mandelker also co-authored an article on “best practice principles”³¹ for the preparation of environmental assessments that was based on a report that the National Association of Environmental Professionals prepared, and on which Mandelker played a leading role, in response to a solicitation from CEQ for pilot projects that would help make NEPA implementation more efficient and effective.³² Dan Mandelker thus not only “talked the talk.” He also “walked the walk” by offering concrete suggestions for NEPA’s improvement.

Casebook Treatment of NEPA

Professor Dan Mandelker would have made his mark had his work on NEPA been confined to the law review articles discussed above. But those works barely scratch the surface of Mandelker’s contributions to a better understanding of NEPA and its successes and shortcomings. As he recounted in a Festschrift to Professor Dan Tarlock, with whom both of us have worked extensively, Tarlock asked Mandelker to prepare a chapter on NEPA for the first edition of what they envisioned as being the first comprehensive law school casebook on environmental law. Mandelker’s idea was to convert teaching materials that he had prepared into a published product with the help of Tarlock and Fred Anderson.³³ The three of them published the first edition of the casebook in 1984.³⁴

Seven more editions of the casebook have since been published, with the ninth edition having been published by Aspen Publishing in 2023.³⁵ I joined the casebook for the third edition,³⁶ taking on the role of coordinating coauthor. We have experienced many personnel changes among the book’s authors over the years, but the one constant has been Dan Mandelker. He is the sole remaining original author and the only coauthor who has participated in all nine editions. Throughout all those editions, Mandelker has prepared the chapter on NEPA.³⁷ For every edition, he has revised and updated the chapter to account for the latest NEPA case law, issues, and challenges. The ninth edition, for example, highlights the recent slew of cases addressing whether agencies need to consider, as indirect effects in their NEPA evaluations, the upstream and downstream effects on climate change of agency actions like oil and gas production or natural-gas pipeline construction.³⁸ Countless environmental law students have cut their teeth on NEPA through a chapter that reflects Professor Mandelker’s accumulated wisdom, gained through the decades he spent exploring the statute’s ins and outs.

The Magnum Opus: The NEPA Treatise

Based on our work together on the casebook, Professor Mandelker approached me in 2004 to join him in the process of updating his magnificent treatise, NEPA Law and Litigation. He first published the treatise in 1984 and produced a second edition in 1992. Since then, he has republished updated versions of the book, the latest of which is the 2022 edition.³⁹ The preface to that edition explains the book’s purpose:

This treatise reviews the case law that has become a “common law” that interprets and applies NEPA’s brief and incomplete statutory provisions. The cases determine what NEPA means and what federal agencies must do to comply with the statute. The critical importance of the case law reflects the dominance of the federal courts in NEPA’s implementation, a development that was probably unexpected.⁴⁰

As my role in the book’s preparation has expanded over the years, Professor Mandelker’s has shrunk. But there is no doubt that he remains the driving force behind the book and its analysis. He is always completely up-to-date on the latest NEPA litigation, and his frequent suggestions for revisions to the chapters that I prepare have immeasurably strengthened the book as a vital research tool for NEPA litigating attorneys and environmental law scholars.

The book’s value cannot possibly be quantified, but numbers are nevertheless revealing. The federal courts have cited the treatise in at least twenty-five cases.⁴¹ Two of those cases are United States Supreme Court decisions: Robertson v. Methow Valley Citizens Council⁴² and Monsanto Co. v. Geertson Seed Farms.⁴³ At least two state cases have also cited the treatise,⁴⁴ one of which was written in Spanish!⁴⁵ As of this writing, nearly 250 law review publications also cited the treatise.⁴⁶ According to one environmental law and NEPA expert, the treatise provides “[t]he broadest survey of NEPA law.”⁴⁷ Clearly, both jurists and scholars have often turned to NEPA Law and Litigation to answer their NEPA-related questions.

So have practicing attorneys, whose praise for the book has been effusive. When NEPA Law and Litigation was first published, a lieutenant in the Naval Legal Service Office Detachment published a review of the book.⁴⁸ Lieutenant Daniel Rosenberg remarked that “[c]ommanding officers often call on judge advocates and law specialists for advice on environmental matters affecting their installation. When the resolution of the issue is governed by [NEPA], Daniel Mandelker’s book NEPA Law and Litigation is an excellent guide.”⁴⁹ He added that “NEPA Law and Litigation is invaluable for its comprehensive treatment of the subject. . . . [T]he book should provide an excellent starting point for most potential NEPA problems.”⁵⁰ According to Rosenberg:

A key question to any military legal advisor is what command actions may trigger the requirement for an EIS. . . . NEPA Law and Litigation can assist in command planning because it provides extensive case analysis of when the statement is necessary. Possible military projects and activities that may constitute Federal “action” include base closings, shifting flight patterns, waste removal, and a variety of other military operations.⁵¹

Rosenberg concluded that “NEPA Law and Litigation is, therefore, highly recommended for judge advocates and law specialists dealing with the environmental consequences of military activities.”⁵²

NEPA Law and Litigation has continued to provide assistance to military officials in performing environmental evaluations on proposed actions of the kind referred to by Rosenberg. Pamela Hudson, the Senior Associate Counsel for the Naval Facilities Engineering Systems Command Southwest, recently emailed me after listening to the encomiums delivered by Professor Mandelker’s friends and colleagues at the live online event held in connection with this Festschrift. She described how extensively Naval officials have relied on the treatise:

The [Department] has about 135 environmental attorneys, of that, almost 35 attorneys practice environmental planning and NEPA exclusively. The agency has about 3 [Records of Decision] signed out each year with 12-13 EISs in process at any given moment. I can definitely attest to each of the senior NEPA attorneys have a copy of the treatise on their shelves handy. Senior Navy leaders have consulted this treatise in each of the EISs for the last decade, [which has] contributed to the legal advice ranging from the scope of the federal action, to, for example, research involving foreclosure of alternatives. [Professor Mandelker’s] scholarly work improved policy making for the agency . . . to fleet testing and training activities, modernization initiatives for our shipyards, and land use withdrawals and other NEPA/land use transactions. His name is used, sometimes on a daily basis, for example, please check Mandelker . . . grab the Mandelker. I don’t know if he could have imagined those words used frequently on Navy staffs and ships and on United States Marine Corps planning staffs.

I used his treatise for our Navy courses on advanced environmental law topics (NEPA)–training over 120 students; with over 1000 students trained over a decade. I think if you ask any of the current senior environmental attorneys for the Navy—they would praise his contributions to the national defense of the United States through improvement of environmental planning and impact assessment practice.

Finally, I was lucky enough to meet and work with Professor Mandelker on a CEQ pilot initiative for Best Practice Principles for Environmental Assessment;⁵³ it was his quiet leadership and mentorship that lead to a successful completion of that paper, which was adopted and lauded by the CEQ.⁵⁴

It seems that “checking Mandelker” has become a catchphrase for turning to the definitive source book on NEPA practice for guidance on how best to ensure compliance with the duties the statute and implementing CEQ regulations impose on federal agencies.

The input provided by military lawyers is representative of the feedback that Professor Mandelker and I have received from others who regularly rely on NEPA Law and Litigation. I have received emails and letters from many former students over the years, and Professor Mandelker has forwarded to me emails that he has received from attorneys practicing environmental law, in which they have attested to the valuable resource that NEPA Law and Litigation is in their day-to-day practice.

Dan Mandelker, NEPA Guru

Dan Mandelker’s impact on scholarly assessment of NEPA, on judicial resolution of NEPA issues, and on treatment of NEPA issues by practicing environmental lawyers cannot be overstated. I will conclude this brief tribute to Mandelker’s work on NEPA over many decades with a description of his relationship to NEPA that Dan Tarlock provided in his contribution to the 2010 Washington University symposium on New Directions in Environmental Law. Tarlock explained that Mandelker “has been a student of NEPA since its passage and is a strong proponent of the ability of NEPA litigation to promote better environmental decision-making.”⁵⁵ Tarlock praised Mandelker’s “extraordinary knowledge of . . . NEPA law,” which has helped “to tell the story of NEPA’s fate.”⁵⁶

Even if I had never met Dan Mandelker, I would have sought out his scholarship on NEPA to help me understand, write about, and teach one of the foundational federal environmental statutes. It has been my good fortune to work with the master himself over many years, both on our casebook and on the iconic treatise that Dan first published just a few years after I began my law school teaching career. Dan Mandelker has served as a model for me of what a thoughtful and productive scholar looks like. He has inspired me to explore the fascinating issues to which NEPA’s implementation has given rise,⁵⁷ and I have delighted in passing along his many insights into NEPA law and litigation to generations of law students. I will always cherish our collaborations together and am grateful for the opportunities he has given me to serve as his NEPA apprentice.

Endnotes

1. Robert L. Glicksman, Making A Nuisance of Takings Law, 3 Wash. U. J.L. & Pol’y 149, 149 (2000).

2. Id. at 150 (footnotes omitted).

3. See, e.g., Daniel R. Mandelker, Litigating Land Use Cases in Federal Court: A Substantive Due Process Primer, 55 Real Prop. Tr. & Est. L.J. 69 (2020); Daniel R. Mandelker, Conclusion, 6 Wash. U. Global Stud. L. Rev. 155 (2007); Daniel R. Mandelker, Model Legislation for Land Use Decisions, 35 Urb. Law. 635, 652–56 (2003).

4. 42 U.S.C. §§ 4321–4370j.

5. Daniel R. Mandelker et al., NEPA Law and Litigation 1 (2022); see also Daniel R. Mandelker, The National Environmental Policy Act: A Review of Its Experience and Problems, 32 Wash. U. J.L. & Pol’y 293, 293 (2010) (“[NEPA], the Magna Carta of environmental law, requires all federal agencies to evaluate the environmental impacts of their actions[.]”). NEPA was being described as an environmental law “Magna Carta” as early as 1972. Arthur W. Murphy, The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?, 72 Colum. L. Rev. 963 (1972). One of the early environmental law casebooks, on which Professor Mandelker was a co-author, used the same terminology. Frederick R. Anderson, Daniel R. Mandelker & A. Dan Tarlock, Environmental Protection: Law and Policy xxviii (1984).

6. See, e.g., Montrose Parkway Alts. Coal. v. U.S. Army Corps of Eng’rs, 405 F. Supp. 2d 587, 593 (D. Md. 2005). As a member of the Court of Appeals for the D.C. Circuit, then-Judge Clarence Thomas disparaged that characterization. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991) (“Just as NEPA is not a green Magna Carta, federal judges are not the barons at Runnymede.”). Environmental law scholars, including this one, have aligned themselves with Professor Mandelker, not Justice Thomas. See, e.g., Doug Williams, Teaching Environmental Law After Trump, 66 St. Louis U. L.J. 469, 477 (2022) (stating that NEPA is “viewed by many as the ‘Magna Carta of global environmental law’”) (quoting Robert L. Glicksman & Alejandro E. Camacho, The Trump Card: Tarnishing Planning, Democracy, and the Environment, 50 Env’t L. Rep. News & Analysis 10281, 10281 (2020)); Jayni Foley Hein & Natalie Jacewicz, Implementing NEPA in the Age of Climate Change, 10 Mich. J. Env’t & Admin. L. 1, 9 (2020) (“Because of NEPA’s pivotal legal importance and its restraining effect on environmental plundering, many have dubbed the statute the ‘Magna Carta of environmental law.’”).

7. 42 U.S.C. § 4321.

8. Id. § 4331(b)(1), (3).

9. Glicksman & Camacho, supra note 6, at 1283; see also 40 C.F.R. § 1500.1(a) (stating that NEPA is “intended to ensure Federal agencies consider the environmental impacts of their actions in the decision-making process. The purpose and function of NEPA is satisfied if Federal agencies have considered relevant environmental information, and the public has been informed regarding the decision-making process.”).

10. 42 U.S.C. § 4332(2)(C).

11. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 23 (2008) (“‘NEPA itself does not mandate particular results.’ Instead, NEPA imposes only procedural requirements to ‘ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.’”) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50, (1989)); see also Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004); cf. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980) (stating that “once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences”).

12. 42 U.S.C. § 4342. CEQ’s functions and duties are described at id. § 4344. See also CEQ, A Citizen’s Guide to NEPA: Having Your Voice Heard 6 (2021), https://ceq.doe.gov/docs/get-involved/citizens-guide-to-nepa-2021.pdf. It notes:

CEQ has primary responsibility for overseeing implementation of NEPA by Federal agencies. Congress placed CEQ in the Executive Office of the President and gave it many responsibilities, including the responsibility to ensure that Federal agencies meet their obligations under the Act. CEQ oversees implementation of NEPA, principally through issuance and interpretation of NEPA regulations that implement the procedural requirements of NEPA.

13. CEQ, The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-five Years iii (1997), https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf [hereinafter CEQ, A Study]. The Fiscal Responsibility Act, Pub. L. No. 118-5, §321, 137 Stat. 10, 38-46 (2023), included the first significant amendments to NEPA since its adoption, adding considerable length to the statute’s initial three pages.

14. CEQ, A Study, supra note 13, at iii.

15. Id. at 35.

16. Daniel R. Mandelker, NEPA Alive and Well: The Supreme Court Takes Two, 19 Env’t L. Rep. News & Analysis 10385 (1989).

17. Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989); Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).

18. Mandelker, supra note 16, at 10387. NEPA has fared miserably at the hands of the Court over the years. See Richard J. Lazarus, The Power of Persuasion Before and Within the Supreme Court: Reflections on NEPA’s Zero for Seventeen Record at the High Court, 2012 U. Ill. L. Rev. 231 (2012). But cf. David C. Shilton, Is the Supreme Court Hostile to NEPA? Some Possible Explanations for a 12-0 Record, 20 Env’t L. 551, 554 (1990) (arguing that the Court’s NEPA cases present a “complex picture that cannot fairly be explained in terms of ‘hostility’”); id. at 567 (“In sum, the Supreme Court’s NEPA opinions are characterized not by hostility to the statute but by respect for what Congress actually said in the statute and by a realistic appreciation of the courts’ limited ability to oversee agency actions that affect the environment.”).

19. Daniel R. Mandelker, Thoughts on NEPA at 40, 39 Env’t L. Rep. News & Analysis 10,640, 10,640 (2009).

20. Id.; see also Sidney A. Shapiro & Robert L. Glicksman, Risk Regulation at Risk: Restoring a Pragmatic Approach 127 (2003) (“NEPA, by all accounts, has succeeded in fostering an interdisciplinary approach to decision-making.”).

21. Mandelker, supra note 19, at 10,641.

22. Id.

23. Daniel R. Mandelker, The National Environmental Policy Act: A Review of Its Experiences and Problems, 32 Wash. U. J. L. & Pol’y 293 (2010).

24. Id. at 294.

25. Id. I have described how NEPA’s implementation has accommodated those difficulties:

In short, while NEPA seeks to enhance the rationality of agency decisionmaking by fostering consideration of potential adverse environmental consequences and their relationship to anticipated economic and social benefits, its implementation reflects a recognition that agencies face limits in the degree to which they can engage in that kind of analytical endeavor. Both the CEQ and the courts have been willing to accommodate these practical realities.

Shapiro & Glicksman, supra note 20, at 126.

26. Mandelker, supra note 23, at 298; cf. Shapiro & Glicksman, supra note 20, at 127 (citing Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 79 (1995)) (“By another account, the EIS process creates unnecessary paperwork that delays or kills useful and beneficial projects.”).

27. Mandelker, supra note 23, at 299.

28. Id. at 312.

29. Daniel R. Mandelker, Growth-Induced Land Development Caused by Highway and Other Projects as an Indirect Effect Under NEPA, 43 Env’t L. Rep. News & Analysis 11068 (2013).

30. Daniel R. Mandelker, Melding State Environmental Policy Acts with Land-Use Planning and Regulations, 49 Land Use L. & Zoning Digest 3 (1997).

31. Ron Deverman et al., Environmental Assessments: Guidance on Best Practice Principles, 45 Env’t L. Rep. News & Analysis 10,142 (2015).

32. Nat’l Ass’n of Env’t Professionals, Guidance on Best Practice Principles for Environmental Assessments (Ron Deverman et al. eds., 2014), https://www.naep.org/assets/NAEPGuidanceonBPPsforEAstotheCEQ/naep-ceq-finalbppsforeas20140812.pdf.

33. Daniel R. Mandelker, A Special Tribute for Dan Tarlock, 93 Chi.-Kent L. Rev. 997, 997–98 (2018).

34. Anderson et al., supra note 5.

35. Robert L. Glicksman et al., Environmental Protection: Law and Policy (9th ed. 2023).

36. Robert L. Glicksman et al., Environmental Protection: Law and Policy (3d ed. 1999).

37. Id. ch. 4. A huge added plus for me as coordinating coauthor has been Dan’s punctuality—he never misses a deadline, and usually has things done weeks if not months ahead of time.

38. E.g., Food & Water Watch v. Federal Energy Regulatory Comm’n, 28 F.4th 277 (D.C. Cir. 2022).

39. Daniel R. Mandelker et al., NEPA Law and Litigation (2022). Several additional coauthors contributed to the 2022 edition, including Arianne Aughey, Donald McGillivray, and Jason MacLean.

40. Id. at xiii.

41. I identified the cases by searching for Mandelker /p “NEPA Law and Litigation” in Westlaw’s federal cases database on November 5, 2022.

42. 490 U.S. 332, 352 (1989).

43. 561 U.S. 139, 177, 178 (2010) (Stevens, J., dissenting).

44. Dep’t of Transp. v. Blue, 556 S.E.2d 609, 617 (2001).

45. Municipal de San Juan v. J. C. A., 152 P.R. Dec. 673, 750 (2000).

46. I searched for Mandelker within the same sentence as “NEPA Law and Litigation” in Westlaw’s Law Reviews and Journals database on November 5, 2022, producing 241 results.

47. Jamison E. Colburn, Administering the National Environmental Policy Act, 45 Env’t L. Rep. News & Analysis 10,287, 10,323 n.129 (2015); see also William L. Andreen, Environmental Law and International Assistance: The Challenge of Strengthening Environmental Law in the Developing World, 25 Colum. J. Env’t L. 17, 39 n.99 (2000) (describing the treatise’s treatment of NEPA as “thorough”).

48. Lieutenant Daniel L. Rosenberg, NEPA Law and Litigation; by Daniel R. Mandelker, 38 Naval L. Rev. 241 (1989). At around the same time, another Naval officer praised the treatise for the “excellent discussion of NEPA and the case law it has generated.” Paul R. Smith, The Impact of the Safe Drinking Water Act Amendments of 1986 on Military Installations: How Real Is the Encroachment Threat?, 38 Naval L. Rev. 49, 104 n.239 (1989).

49. Rosenberg, supra note 48, at 241.

50. Id.

51. Id. at 242.

52. Id. at 242–43.

53. See supra notes 31–32 and accompanying text.

54. Email from P.E. Hudson, Esq. to Robert L. Glicksman (Sept. 28, 2022) (on file with author).

55. A. Dan Tarlock, Environmental Law: Then and Now, 32 Wash. U. J.L. & Pol’y 1, 21 (2010).

56. Id.

57. E.g., Daniel Kim, Robert L. Glicksman & Keziah Groth-Tuft, Judicial Review of Scientific Uncertainty in Climate Change Lawsuits: Deferential and Nondeferential Evaluation of Agency Factual and Policy Determinations, 46 Harv. Env’t L. Rev. 367 (2022); Robert L. Glicksman & Jarryd Page, Adaptive Management and NEPA: How to Reconcile Predictive Assessment in the Face of Uncertainty with Natural Resource Management Flexibility and Success, 46 Harv. Env’t L. Rev. 121 (2022); Glicksman & Camacho, supra note 6; David E. Adelman & Robert L. Glicksman, Judicial Ideology as a Check on Executive Power, 81 Ohio St. L.J. 175 (2020); David E. Adelman & Robert L. Glicksman, Reevaluating Environmental Citizen Suits in Theory and Practice, 91 U. Colo. L. Rev. 385 (2020).