Compensatory mitigation has been a rapidly growing industry among states, nonprofits, and the private sector ever since the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) released their 2008 Mitigation Rule, providing clarification to aid agencies, states, permittees, consultants, and others involved in the mitigation process. Since then, further efforts have been made to provide guidance through various rules, memorandums, and policy updates.

Under the Clean Air Act, state-run vehicle inspection and maintenance (I/M) programs aim at preventing both manufacturers and consumers from circumventing or tampering with emissions control technology. Recent manufacturer cheating scandals, however, were detected by means other than I/M programs, and much I/M enforcement has been targeted at relatively low-level offenses.

This Comment provides a comprehensive analysis of state endangered species laws and state funding to implement the federal ESA. It suggests that increased coordination between the states and federal agencies regarding the protection and recovery of threatened and endangered species has some benefits, and opportunities for partnerships between states and the federal government may enhance species protection.

As the world considers how to respond to the Trump Administration’s decision to withdraw from the Paris Agreement, one possible policy response is the adoption of border carbon adjustment (BCA) schemes that are compatible with international trade law. This Comment suggests that international trade law will permit BCAs on products from the United States if such schemes are designed to avoid the World Trade Organization's prohibitions on disguised protectionism and arbitrary or unjustified discrimination.

In a spate of recent cases (Michigan v. EPA, EME Homer City v. EPA, and Entergy Corp. v. Riverkeeper), the U.S. Supreme Court has been widely viewed as abruptly changing course in its treatment of cost-benefit analysis (CBA) in environmental decisionmaking. In fact, these cases represent less of a change in course than is commonly believed. They did not so much eliminate the Court’s previously emerging anti-cost presumption as narrow and perhaps more clearly define it.

Section 1431 of the Safe Drinking Water Act (SDWA) grants the U.S. Environmental Protection Agency (EPA) expansive emergency authority to protect public drinking water sources from contamination. Specifically, §1431 authorizes the EPA Administrator to take any action necessary to protect public health where a contaminant posing an “imminent and substantial endangerment” to the public has entered—or is likely to enter—a public drinking water supply, and appropriate state and local authorities have not acted to abate the threat.

In 1996, Congress abandoned a seven-year effort by consecutive Republican and Democratic administrations to increase FIFRA’s misdemeanor penalties for criminal violations to the felony levels provided under the other major federal environmental laws. More than 20 years later, this disparity remains, despite a series of incidents and criminal prosecutions that demonstrate the inability of misdemeanor penalties to effectively deter pesticide crimes.

This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (forthcoming in 2018 from ELI), addresses the critical role of the electric transmission and distribution grid in achieving deep decarbonization, and discusses the primary federal and state laws that govern expanding the grid. Although significant legal and political barriers exist to creating the new transmission necessary to meet deep decarbonization goals, there are public law and nonpublic law tools available to surmount these barriers.

The Prevention of Significant Deterioration (PSD) program was born 45 years ago from purposivist interpretation of the platitudinal phrase “protect and enhance” contained in the “findings and purposes” section of the 1970 Clean Air Act (CAA). The PSD program has since metastasized into big business, supporting scores of consultants, technical experts, and lawyers. The Donald Trump Administration’s push for regulatory reform has yet again raised calls for changes to the PSD program. Past reforms have provided some benefit but increased the complexity of an already byzantine program.

Conservation easements are increasingly being used both for traditional conservation purposes and as a tool for critical climate change mitigation and adaptation. Because land use decisions are generally made at the local level, environmental and conservation stakeholders should consider using easements as a hedge against inactive or regressive federal policy as well as against the stressors from our warming climate.