Litigating Against Government Agencies: Case Studies in Challenges to Agency Decisions Under Federal Environmental Statutes

摘要

Record review challenges to federal agency decisions in the environmental context are, arguably, among the most frequently litigated and, yet, the least frequently won or favorably settled federal cases. Several case studies from the highly regulated oil, gas, and commercial fisheries industries reveal insights into successful strategies. These case studies suggest that for lawsuits won by industry plaintiffs, common notions of record review cases as simpler, quicker, less costly, and more predictable are untrue, and that the risk of Pyrrhic procedural victories is high. Plaintiffs looking to actually prevail, not just fight the good fight, must demonstrate commitment and stamina, significant forethought, and case-specific procedural and substantive strategies.