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.

I. Is There a Problem?

National Environmental Policy Act (NEPA) environmental documents have gotten a reputation for poor quality of late, and there is general consensus that this reputation is largely deserved. The public, agencies, and NEPA practitioners agree that most documents are difficult to understand and hard to use. Here is some of the evidence:

The National Environmental Policy Act (NEPA) is as American as it gets. It was invented here, and far from being just an environmental review law (as so many imitators are around the globe), it reflects core ideas about how government should relate to citizens, and citizens to their government.

I. NEPA Is the One Law That Doesn't Presume That Government Has All the Answers

This Article looks at one recurring activity that falls within the purview of the National Environmental Policy Act (NEPA): livestock grazing on arid and semi-arid U.S. Forest Service lands west of the Rockies. The relationship of this activity to environmental assessments (EAs), categorical exclusions (CEs), environmental impact statements (EISs), and ultimately §101 of NEPA are briefly described.

While environmental lawyers recognize that there is no contradiction between meaningful environmental review and timely completion of important public projects, there has been widespread concern that compliance with the National Environmental Policy Act (NEPA), and in particular NEPA's requirement for an environmental impact statement (EIS), will frustrate or even derail the major infrastructure projects that are central to President Barack Obama's stimulus program and the nation's economic recovery.

To many proponents of the National Environmental Policy Act (NEPA), the Act will never fully realize its promise as long as it remains enforceable only as a procedural requirement. During the first decade of NEPA's existence, an open issue arguably existed as to whether NEPA imposed enforceable substantive requirements as well as procedural ones.

The 40th anniversary of the National Environmental Policy Act's (NEPA's) birth calls forth images of a statute, perhaps framed in innocence, that has profound effects on decisionmaking by federal agencies. Though the legislative history is unclear, there is a strong suggestion that the U.S. Congress believed they were enacting a law that would allow agencies to write their own compliance ticket. This changed with a landmark case soon after NEPA was adopted that made the statute enforceable in federal courts.

To many proponents of the National Environmental Policy Act (NEPA), the Act will never fully realize its promise as long as it remains enforceable only as a procedural requirement. During the first decade of NEPA's existence, an open issue arguably existed as to whether NEPA imposed enforceable substantive requirements as well as procedural ones.