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 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 …

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 on Legal Planet

There's already been a lot written in the aftermath of Justice Stevens's death, including Ann Carlson's excellent Legal Planet post earlier this week. I'd like to add something about an aspect of his jurisprudence that had great relevance to environmental law: his belief in the rule of law, and specifically, in the duty of both the judiciary and the executive branch to respect and implement congressional mandates.

This stance was evident in Justice Stevens's decision in Massachusetts v. EPA, probably the most important environmental case that Supreme Court has ever decided. The Bush administration refused to regulate greenhouse gases under the Clean Air Act. But the statute was very clear. It defined air pollutants as any substance emitted into the air, and it required regulation of such pollutants whenever they endanger human health or welfare. The Bush administration also argued that international …

This op-ed was originally published in The Hill.

In a recent speech, President Trump touted what he described as "America's environmental leadership" during his presidency. He claimed that over the past two-and-a-half years, his administration has been "a good steward of public land," reduced emissions of greenhouse gases, and successfully promoted clean air and water. 

His claims are Orwellian in scope and mendacity. Even the most cursory examination of the Trump administration's environmental record reveals an appalling litany of irresponsible, anti-environmental actions.

On the existential issue of global climate change, Trump's actions have made the United States anything but an environmental leader. His decision to abandon the Paris Agreement — a promising beginning to international action to curb greenhouse gas emissions — made the United States the only nation on the planet not currently committed to achieving the accord's goals.

What progress we've made as a nation reducing …

Originally published on Legal Planet

Mississippi recently passed a law that has the effect of banning terms like "veggie burger." It's easy to imagine other states passing similar laws. From an environmental view, that's problematic, because beef in particular is connected with much higher greenhouse gas emissions than plant products. It's not just the methane from cow-burps, it's also all the carbon emissions connected with growing corn to feed the cattle. But in addition to its environmental drawbacks, the Mississippi law is subject to severe constitutional problems.

I had to do a little digging to find the law itself. It's an amendment to a law requiring truthful labeling of meat products. It reads as follows: "A food product that contains cultured animal tissue produced from animal cell cultures outside of the organism from which it is derived shall not be labeled as meat or a meat …

High hopes that putting a price on carbon emissions would provide the most effective and politically expedient climate change policy keep getting dashed. In June, Oregon's Republican senators fled the state and hid rather than enact a carbon cap-and-trade program. Washington State citizen initiatives to pass a carbon tax have failed – twice. Even in progressive California, efforts to include a cap-and-trade program in the state's initial climate legislation failed; cap-and-trade came later, administratively rather than legislatively, and as part of a larger plan. 

Carbon pricing has an important role to play and should be a part of any comprehensive climate strategy. However, as I argue in a new CPR Issue Brief, Carbon Pricing: Essential But Insufficient, carbon pricing will not solve the climate crisis. Pricing alone is unlikely to be fully effective, would sacrifice core democratic values, and, as we've seen, may be less politically viable than …

The Affordable Clean Energy (ACE) rule, the Trump administration's recently released substitute for his predecessor's Clean Power Plan (CPP), has been widely criticized as an ineffectual mechanism for addressing power plants' greenhouse gas (GHG) emissions. More broadly, the rule substitutes a technocratic, plant-by-plant approach for the more comprehensive and participatory state planning required by the now-repealed CPP.

The ACE identifies a range of potential heat-rate improvements (usually efficiency improvements) at coal-fired power plants and then lets the states determine which of these "candidate technologies" are feasible at which plants. The states then embody these performance requirements in state implementation plans (SIPs) subject to EPA approval. Energy system planning plays no role in controlling emissions.

In contrast, the CPP, formally repealed at the same time as the ACE was finalized, set the stage for state-level energy system planning. Under the CPP, utilities or plant owners could not only …