The Risk in Discretion: Substantive NEPA’s Significance

By: Jamison E. Colburn Every student of the National Environmental Policy Act (“NEPA”) knows that it is a “procedural” statute.  Its practical difference as law is to force agencies to take a “hard look” at their proposed actions before taking them.   NEPA’s broadest goal—that the government “foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations”—is not, by contrast, law to be enforced.   In short, NEPA’s ultimate goal of making American society more sustainable has been marginalized even as its chief procedural tool—the Environmental Impact Statement (“EIS”)—has become ubiquitous.  NEPA section 102(2)(C) clearly mandates in a modally unmistakable way that “all agencies of the Federal government,” when taking any “major Federal action[] significantly affecting the quality of the human environment,” prepare an EIS, specifying […]

Picking Winners and Losers: A Structural Examination of Tax Subsidies to the Energy Industry

By: Tracey M. Roberts In debates over whether government should continue to subsidize renewable energy, politicians have repeatedly warned that government should not be “picking winners and losers.”   This way of framing the debate undermines sensible policy analysis in two ways.  First, it obscures the long history of federal support for fossil fuels; the United States has been picking winners and losers for over 100 years.  Second, it fails to articulate what it means to “pick winners and losers,” to explain why doing so is less efficient than pursuing other economic policies, and to inquire why this suboptimal choice has been made.  This article addresses these failings by examining two sets of tax subsidies to the energy industry, one for fossil fuels and the other for renewables. Part II  of this article describes economic situations that would justify government intervention in the energy markets and explains why Congress has […]