Originally published on Legal Planet.

Polls show that a great many members of our generation oppose taking action against climate change. I want to try to explain to that group why you should rethink your views. Let me start by explaining why climate action would benefit you yourself and then widen the focus to include your grandchildren and their kids.

Efforts to cut climate change right now aren't likely to have a big effect on climate in the next decade or two. But there are more immediate benefits from cutting carbon. Increasing energy efficiency will cut electricity bills, and stricter fuel efficiency standards will cut gas bills, so these measures pretty much pay for themselves. Moreover, a side effect of cutting carbon is reducing air pollution, which is especially important for people in our age group. When it issued Obama's Clean Power Plan, EPA estimated it would …

This commentary is excerpted from The American Prospect.

Hiking south on the Appalachian Trail from Reeds Gap in Virginia, my teenage daughter and I come to a clearing. We’re at the Three Ridges Overlook, taking in the view of the Rockfish River Valley undulating to the east. Piney Mountain, blanketed in a green canopy of oaks and poplars, stares back at us from across the divide. This tranquil section of the iconic trail is the subject of a four-year legal battle that landed in June at the Supreme Court. It’s the spot where Dominion Energy wants to route the controversial Atlantic Coast Pipeline (ACP), a $7.5 billion, 600-mile, 42-inch-diameter pipe that will carry fracked natural gas from the depths of the Marcellus Shale in West Virginia. The pipeline would run up and over several mountain ranges to the Virginia coast and to eastern North …

Chesapeake Bay and clean water advocates in Pennsylvania and the Mid-Atlantic region celebrated a significant legal win last week as Talen Energy, owner of the notorious Brunner Island coal-fired power plant, agreed to settle a lawsuit filed by the Environmental Integrity Project (EIP). The settlement is big news first and foremost because it will result in the closure and excavation of a massive coal ash disposal pond and the treatment of a number of other ponds, thus eliminating a significant source of pollution contaminating water supplies for residents in Central Pennsylvania. The successful settlement and the widespread press coverage that followed also serve as a pointed reminder of the importance of citizen enforcement of our environmental laws.

Under the settlement, Pennsylvania's Department of Environmental Protection (DEP) will collect a $1 million penalty from Talen Energy. That's particularly notable because DEP was not an original plaintiff in this …

Originally published by The Regulatory Review. Reprinted with permission.

Public participation is one of the cornerstones of U.S. administrative law, and perhaps nothing better exemplifies its value than the notice-and-comment rulemaking process through which stakeholders can provide input on a proposed rule. Yet there remains an inherent tension in the democratic potential of this process. In reviewing final rules, courts demand that agencies demonstrate that those rules are responsive to any substantive comments they receive. But courts generally limit this requirement to comments containing legal or technical information.

This approach to judicial supervision of agency rulemaking is just one of many forces that have helped transform what should be a democratic rulemaking process into a technocratic exercise. On the plus side, expertise-centered rulemaking has substantially improved regulatory quality. These gains, however, have come with some important unintended consequences.

For one, the growing hegemony of technocratic decision-making …

Originally published on Legal Planet.

The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution.

The Clean Air Act, the federal air pollution statute, is largely structured in terms of achieving national ambient air quality standards (NAAQS). In March 2020, EPA will propose revisions in the standards for ozone and particulates, the two most important pollutants. It has already started work on the revisions. Guess what? EPA won't be planning to tighten the standards. If anything, they are likely to loosen them, weakening a crucial safeguard.

Trump's EPA has …

Originally published on Legal Planet.

Last Friday, the Fourth Circuit Court of Appeals halted efforts to build a natural gas pipeline because the Trump administration had done such a lousy job of showing its compliance with the Endangered Species Act. This was one of the administration's many losses in court. The case involved a perfect example of "arbitrary and capricious" decision making, to use the legal terminology. In simpler terms, the government's explanation for its decision was as full of holes as a sieve. This was such a textbook case, I'll be surprised if the court's opinion doesn't make it into one of the environmental law casebooks.

The case, Defenders of Wildlife v. Dept. of Interior, was actually back before the Fourth Circuit for the second time. In 2017, the U.S. Fish & Wildlife Service (FWS) issued a Biological Opinion saying that the project wouldn't jeopardize …

This commentary was originally published by The American Prospect.

Everyone in communications knows how to bury a news story: release it late on a Friday. So it was with the White House’s annual report on federal regulations, released months behind schedule on a Friday in February. As it has for many years, the report pegged the benefits of federal regulation in the hundreds of billions of dollars, swamping the calculated costs of compliance by at least 2 to 1 and possibly as much as 12 to 1—awkward results for the Trump communications team, to say the least. How to square these numbers with the “job-killing regulations” trope was a real head-scratcher.

It might seem like good news that regulatory safeguards actually do save a lot of lives, not to mention preventing a lot of diseases, accidents, and other bad things. But these big numbers on …

Originally published on Legal Planet.

To hear President Trump talk, the point of deregulation is to reduce the burden of regulation on industry. But weirdly enough, that doesn't turn out to be true of Trump's effort to repeal Obama's Clean Power Plan (CPP) and replace it with his own Affordable Clean Energy (ACE) rule. Both rules regulate carbon emissions from power plants (though Trump's rule covers only coal plants). According to his own EPA, however, the Trump administration's approach will actually increase costs to industry.

It's actually a kind of perfect storm. First, the rule eliminates a trivial amount of carbon and handicaps any future climate efforts. Second, it imposes significant economic costs (many of them avoidable). Third, it reduces state governments to the role of unpaid engineering consultants. And – to mix metaphors – the cherry on top is that the ACE rule is actually likely to be …

Originally published by The Regulatory Review. Reprinted with permission.

As the United States slogs through year three of a deregulatory implosion, one truth has become clear: As practiced by the Trump administration, cost-benefit analysis has become a perversion of a neutral approach to policymaking.

To be forthright, I was never a fan of the number crunching. I thought it created the false impression that numerical estimates were precise, drastically understated benefits, buried controversial value judgments behind barricades of formulas, and depended on unreliable indicators of how much real people valued risk. But I understood it was here to stay when Cass Sunstein persuaded President Barack Obama to embrace it. The task for people like me became understanding how the methodology was practiced by economists so that we could make arguments critiquing its harsh applications.

The first sign of a crumbling structure was the shift among congressional conservatives …