I.The BP Lake Michigan Pollution Fight

Section 102 of the National Environmental Policy Act (NEPA) contains a broad mandate to apply the policies of §101 on an international plane. I explored these concepts initially on assignment as a member of the Legal Advisory Committee to the Council on Environmental Quality (CEQ) in 1969-1971, and published the analysis in 1974, after that Committee wound up its business.

Twice in recent years, the U.S. Forest Service has decided it could and should stop conducting environmental review under the National Environmental Policy Act (NEPA) for the long-range management plans it periodically must produce for individual national forests (or in some cases groups of forests). This is, at the very least, counterintuitive. These plans govern how the environment is shaped over the course of a decade or more, on many millions of acres of public land. What could be more deserving of plenary environmental review?

I. Foresight as a Foundation for Security

The National Environmental Policy Act (NEPA) has often been called our nation's environmental Magna Carta. NEPA's structure and language are constitutional in character. Widely recognized as the world's first comprehensive statement of environmental policy, NEPA became a model for environmental policy and law around the globe.

In this new age of environmental law, scholars, advocates, policy makers, journalists, and other interested members of the public can gain access to and harness information about our environment through federal right-to-know laws, including the Freedom of Information Act (FOIA). The question is whether these statutes ensure that environmental information is made available to the public in a timely and dependable way.

Prof. David Vladeck's article, Information Access--Surveying the Current Legal Landscape of Federal Right-toKnow Laws, provides a powerful case for strengthening existing environmental right-to-know laws such as the Freedom of Information Act (FOIA) and other enabling statues that require firms to report--and the government to provide public access to--environmental information. He focuses on two examples where almost by default, due to procedural burdens and the ability to claim proprietary business information, the government can withhold and/or delay release of data.

Openness is an American bedrock principle, with secrecy being disdained except where absolutely necessary. As former Sen. Daniel Patrick Moynihan (D-N.Y.) said, "Secrecy is for losers." If information is the lifeblood of democracy, then public access to information would be the arteries that keep democracy healthy. Yet, despite the clear importance of transparency to an effective and accountable government, we continue to fall short of the openness we need and have often been promised.

Editors' Summary

Leslie Carothers: Donald Stever is an environmental lawyer with more than 30 years of civil and criminal environmental litigation and counseling experience. He is now a partner at the K&L Gates law firm in New York. In his earlier incarnations, he was chief of not one but two sections--enforcement and environmental defense--at the U.S. Department of Justice. And when he was even younger, in the 1970s, he was the primary, or perhaps the only, environmental lawyer in the Attorney General's Office in New Hampshire.

2009 was a dramatic year for the Clean Air Act (CAA). Under the Obama Administration, the U.S. Environmental Protection Agency (EPA) took significant steps on many fronts. As widely expected, it issued an endangerment finding with respect to greenhouse gases (GHGs) and granted California's waiver request. However, less expected, was the new national automobile GHG emissions standard that managed to garner the auto industry's support.