Editor's Summary: The law governing off-site contamination began with common law and has grown to include federal legislation such as Superfund, the Resource Conservation and Recovery Act, the Clean Water Act, and the Oil Pollution Act. John Pendergrass traces the development of this area of law from its beginnings in tort and third-party liability to present-day state and federal statutes. In this Article, he offers a study of the chronology of brownfields legislation, concluding with some remarks about the future of off-site contamination law.

Editors' Summary: EPA imposes strict emissions and durability standards on vehicle manufacturers today. While these standards have become more stringent over time, the regulatory requirements for demonstrating compliance with these standards have relaxed. In this Article, Kevin L. Fast identifies and describes this relevant regulatory framework governing the reporting of emission-related component defects in North America. He provides descriptions and data on nearly 600 defect reports prepared by 6 of the largest vehicle manufacturers currently in the marketplace.

Editors' Summary: Wildlife agencies entrusted by Congress to administer the ESA have in two recent counterpart regulations revised interagency cooperation procedures in ways that appear to fall short of statutory requirements. Two federal district courts have now ruled in a contradictory manner on the validity of these regulations. Meanwhile the regulations held valid continue to be used to allow action agencies to aggrandize their role in determining whether their projects will be "not likely to adversely affect" protected species--thus receiving no further scrutiny.

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