Editors' Summary: NEPA, the premier U.S. environmental protection statute, was intended to confront questions of risk, harm, and uncertainty by requiring an EA before beginning certain projects. Following such assessments, project proponents may also have to prepare an EIS to identify and consider alternatives that may result in less harm to the environment.

Editors' Summary: The CAA's PSD program is extraordinarily complex. This Article is the third in a series on preventing significant deterioration under the CAA. The first two Articles, which appeared in the December 2005 and January 2006 issues of News & Analysis, focused on baselines, increments, and ceilings. In this Article, Prof. John-Mark Stensvaag turns his focus to the circumstances under which a new stationary source must obtain a PSD permit.

Editor's Summary: Prof. Jonathan Nash suggests that it may be possible to construct a viable development rights trading regime that would protect ecosystems and endangered species by relying on lessons from other trading programs, such as air emissions credits. Virginia Albrecht finds the analogy to air emissions credits weak because it fails to take into account the private-property rights inherent in land, the many competing demands on land use, and the fungibility of air.

Like many commentators who have gone before him, Jonathan Remy Nash argues that the Endangered Species Act's (ESA's) command-and-control structure produces results that "flout[ ] both science and efficiency." According to Nash, the ESA "fails to achieve species or habitat preservation in a cost-effective way," and its "inflexibility gives rise to initiatives that run counter to preservation and expansion of species' habitat."

In the air and water pollution control arenas, the trading of pollution allowances has been embraced as a flexible and cost-effective way of achieving prescribed pollution reduction goals. Its advantages over prescribed technology requirements or across-the-board reduction requirements are manifest. The marketability of allowances creates an incentive for excess reductions by those who can achieve them cheaply, as well as a less costly means of achieving compliance with mandated goals by those who would otherwise face formidable compliance costs.

On May 22, 2008, a phenomenal event occurred in the taxation of timber: regular business corporations became entitled--for one year--to claim a tax rate of not over 15% on various kinds of dispositions of timber. The change arose under the Timber Revitalization and Economic Enhancement Act of 2007, known as the TREE Act, which was enacted as a component of the Food, Conservation, and Energy Act of 2008, popularly known as the Farm Bill.

Editor's Summary

Scott Schang: Our conversation today is about expedited NEPA [National Environmental Policy Act1] review and what that really means. We'll see if our panelists can help us come up with a definition for that. This got started a couple of months ago when it became clear that siting new transmission lines to try to tie alternative energy sources into the grid was going to run up against NEPA and other environmental reviews. At the Environmental Law Institute, we were concerned that, once again, environmental law was being portrayed as standing in the way of progress.

The central purpose of the National Environmental Policy Act (NEPA) is not to produce gorgeous or perfect documents; that's a means to an end. The ultimate purpose is to improve governmental decisionmaking by making relevant information available to officials and by ensuring that everyone affected by the decisions is given a voice. I would like to focus on the effect of NEPA on decisions.

I will discuss three issues.

I. Introduction

Why does this middle-aged environmental law deserve such a warm 40th birthday party? The usual reasons are well known:

The National Environmental Policy Act (NEPA) has an elegant style. It is bold and sparse and trim. It comes close to eloquence now and then.

It is well-targeted--aimed squarely at the agencies of the United States. It is inviting, not punitive. It is tantalizing in the prospects.