Editors' Summary: Earlier this year, the U.S. House of Representatives Resources Committee launched a Task Force on Improving the National Environmental Policy Act (NEPA), organizing a number of hearings across the country. While industry representatives complained of interference and delays in project approvals, environmentalists asserted that the statute works and praised its venue for public participation. The aftermath of Hurricanes Katrina and Rita added more fuel to the controversy.

Editors' Summary: The CAA's PSD program is extraordinarily complex. This Article, written in two parts, focuses on the root of the PSD implementation process--baselines, increments, and ceilings. After exploring the essential features of baselines, increments, and ceilings, Prof. John-Mark Stensvaag delves into to the complications that clutter up the theoretical simplicity of these features--complications flowing from statutory drafting, regulatory drafting, and interpretative choices made during the first 30 years of the program.

This Article provides a relatively short summary of the most important environmental case law developments of the past year.¹ The treatment of cases is divided into two categories: first, extended consideration of the most significant developments; second, a somewhat briefer summary of several other significant decisions, organized by statute or subject matter.

In a recent case involving environmental policies, the U.S. Court of Appeals for the D.C. Circuit continued on its course of remanding administrative agency actions while neither reversing nor vacating them, in order to allow bureaucrats to explain decisions that otherwise cannot be sustained. This practice is unfortunate. It contravenes due process requirements that agency choices be evaluated on the actual record generated below instead of post-hoc litigation rationalizations and is based on a dubious extrapolation of precedent.

Claims for punitive damages in environmental tort cases raise a number of interesting state-law and constitutional issues. Recently, the U.S. Court of Appeals for the Eleventh Circuit had the occasion to address some of these issues in Johansen v. Combustion Engineering, Inc.¹ This Dialogue discusses the aspects of the Johansen decision that have particular relevance in environmental cases and seeks to provide practitioners with some guidance as to how to approach these issues in future cases.²

Military historians observe that the losing armies were the ones that were only prepared to fight the last war, failing to change their tactics and strategies to deal with current warfare. Today, environmental groups and U.S. industries continue to war over the public dissemination of process details and chemical formulations regarding the environmental consequences of industrial facilities. Information confidentiality disputes relating to the environment present a classic political science, economic, and philosophical conflict among competing values.

Editors' Summary: Can the complex process of allocating cleanup costs at Superfund sites be distilled into a set of practical and common-sense rules? This Dialogue, written by a co-author of an Article on Superfund allocation published in the February 1998 issue of ELR, submits that there are indeed eight fundamental rules to guide potentially responsible parties and regulators in moving from "Superfund soup" to allocations that are rational and equitable. The rules are derived from the statute, judicial interpretations, and EPA policies.

The decisions of the D.C. Circuit Court of Appeals in American Trucking Ass'n v. U.S. Environmental Protection Agency,¹ which remanded in part and vacated in part the U.S. Environmental Protection Agency's (EPA's) promulgation of revised national ambient air quality standards (NAAQS) for ozone and particulate matter (PM) under the federal Clean Air Act (CAA),² might have significant implications for the future of U.S. air quality law and policy.

This Article reviews the empirical research on the effectiveness of monitoring and enforcement of environmental policy in deterring individuals and firms from violating environmental laws or achieving an improved level of environmental performance. It considers both "monitoring" activities (such as government inspections) and "enforcement" activities (such as sanctions, remedial actions, and other mechanisms designed to punish and/or bring a firm into compliance).

Common-law nuisance actions have long been a part of our jurisprudence.¹ Landowners who are not reasonable in their use of property can be restrained under an action in nuisance. While courts have balanced the utilities and applied various tests of reasonableness, the end result is that an activity or land use that is too offensive to surrounding property owners may be enjoined.