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Clinic Publications

In its work, the Clinic produces a variety of work product, including white papers; model or draft statutes, ordinances, and regulations; comments on proposed regulations or permits; amicus briefs; guides; and published articles. Below are a sampling of these publications.

Table of Contents
White Papers
Statutes, Ordinances, and Guidance
Comments on Regulations and Other Agency Actions
Amicus Briefs
Guides
Articles


White Papers

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Fisheries Co-Management in the United States: Incentives, Not Legal Changes, Key
This March 2016 report seeks to determine the main factors impeding the full development of cooperative management of fisheries in the United States, by identifying any legal or regulatory barriers to cooperative management. The Clinic collaborated with the Environmental Defense Fund (EDF) on the research and analysis for this report.

cover info access

Offshore Drilling: Coordinating and Improving Access to InformationThis December 2014 report recommends mechanisms for facilitating public access to, and intra- and inter-agency sharing of, information from companies engaged in offshore drilling. The Clinic focused specifically on the accessibility of information collected by the Department of the Interior’s Bureau of Safety and Environmental Enforcement (“BSEE”) because of BSEE’s central role in overseeing offshore safety and environmental protection. The report identifies obstacles to public and agency access to the information reported to BSEE under its regulations and offers concrete recommendations to address these problems.

Microgrids report

Massachusetts Microgrids: Overcoming Legal ObstaclesThis September 2014 report summarizes the conclusions of the Clinic’s research into legal constraints on the ownership structure of microgrids in Massachusetts. The Clinic undertook this work at the behest of the City of Boston, to help promote the development of microgrids in the City and elsewhere in the Commonwealth. Microgrids have significant potential as a climate change adaptation measure and provide significant efficiency and greenhouse gas emission reduction benefits.

Cover - Certifications for Green Infrastructure Professionals

Certifications for Green Infrastructure Professionals – The Current State, Recommended Best Practices, and What Governments Can Do to HelpThis July 2014 report released by the Clinic and the Environmental Policy Initiative surveys the current state of Green Infrastructure (GI) professional certification programs, discusses obstacles to the development of widely accepted certifications, and suggests measures that governments can take to promote certification programs. The report also recommends best practices for GI certification program design and implementation based on design options observed in existing GI certification

Regional Stormwater

Regional and Municipal Stormwater Management: A Comprehensive ApproachThis June 2014 report released by the Clinic and the Environmental Policy Initiative analyzes options for addressing stormwater pollution at both the regional and municipal level.  The report encourages the adoption of green infrastructure by municipalities as a stormwater pollution reduction strategy, and recommends that municipalities consider participating in a regional program as a comprehensive and cost-effective way to address stormwater pollution.

Responding to Landowner Complaints

Responding to Landowner Complaints of Water Contamination from Oil and Gas Activity: Best PracticesThis May 2014 report released by the Clinic and the Environmental Policy Initiative provides recommendations for state lawmakers and agencies to consider implementing to develop robust, comprehensive policies for responding to landowner complaints.  If adopted, these practices can help ensure that agencies conduct a thorough investigation of potentially contaminated water sources, landowners obtain an accurate understanding of the finding, and the investigatory process is open and transparent.

Suggested Indicators

Suggested Indicators of Environmentally Responsible Performance of Offshore Oil and Gas Companies Proposing to Drill in the U.S. ArcticThis December 2013 report suggests a set of performance indicators for use to evaluate and predict the environmental performance of companies proposing to drill for oil or gas in the U.S. Arctic.  In developing this suggested set of indicators, the Clinic attempted to address all aspects of offshore oil and gas operations in the Arctic, including exploration, drilling, production, and product transportation, and to cover both the risk of catastrophic accidents and environmental impacts that occur during the course of normal operations.

Beyond 2020
Beyond the 2020 Plan: A Review of the Massachusetts Clean Energy and Climate PlanThis report, published in August 2013, presents a dozen concrete suggestions to help the Commonwealth of Massachusetts achieve its greenhouse gas emissions reduction goals under the Global Warming Solutions Act.  Suggested measures include promoting of electric vehicle use and promoting the transition to LED (light emitting diodes) public lighting both on municipal roads and on property managed by state agencies.
Solar Taxation
The Solar Property Tax Exemption in Massachusetts: Interpretations of Existing Law and Recommendations for AmendmentsReleased in July 2013, this white paper recommends the Massachusetts legislature remove confusion about tax incentives for solar photovoltaic (PV) projects, to enable more homeowners and business owners to install renewable energy.  The paper reviews the sources of legal uncertainty and surveys the approaches taken by other states to exempt solar projects from property taxes.
MSA aquaculture
Offshore Aquaculture Regulation Under the Magnuson-Stevens Fishery Conservation and Management ActThis June 2013 white paper reviews the applicability of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to aquaculture and makes several recommendations for ways in which the National Marine Fisheries Service can better apply the MSA to minimize the environmental impacts of offshore aquaculture.  This paper is also part of the ongoing collaboration with the Environmental Law Institute and the Ocean Foundation.
CWA aquaculture
Offshore Aquaculture Regulation Under the Clean Water ActReleased in December 2012 in collaboration with the Environmental Law Institute (ELI) and the Ocean Foundation, this paper posits that while offshore aquaculture is still a nascent industry, EPA can—and should—develop appropriate tools to establish adequate oversight of these facilities in federal ocean waters.  In particular, the paper recommends that (1) EPA ensure that all offshore facilities that discharge into the ocean are considered point sources and must obtain a discharge permit; (2) improve the standards for offshore aquaculture facility permits to set numeric limits for all types of discharges; and (3) identify data needs and develop requirements for monitoring and reporting for all facilities in the ocean.
Offshore Drilling

Recommendations for Improved Oversight of Offshore Drilling Based on a Review of 40 Regulatory RegimesThis white paper, published in June 2012, is the first step in a multi-semester project of the Clinic to make recommendations for the effective regulation of offshore drilling in the Arctic.  Based on a review of 40 domestic and international regulatory programs in the areas of health, safety, environment, and finance, the paper identifies general program elements that would improve the regulation and oversight of offshore drilling. Appendix: Regulatory Programs and Organizations Analyzed January-April 2012

South Boston Adaptation
Legal Options for Municipal Climate Adaptation in South BostonThe Clinic issued this white paper in August 2011, as part of its ongoing collaboration with the City of Boston in the City’s climate adaptation planning.  This paper analyzes legal options available to the City to respond to the effects of climate change, with a particular focus on the impacts of sea level rise in South Boston.
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Municipal Climate Change Adaptation and the Insurance IndustryThis white paper, published in April 2012, examines ways in which municipalities such as the City of Boston can work with the insurance industry to promote climate adaptation.

Working Paper: Proposed Liability Framework for Geological Sequestration of Carbon Dioxide.

Released in November 2010, this working paper proposes a detailed liability framework for carbon capture and sequestration to provide certainty, assuage public concerns, and remove barriers to CCS projects.

The Summary Report of the Expert Workshop Addressing CCS Liability, Oversight, and Trust Fund Issues.  Released in October 2010, the summary report represents a synthesis of the main points and arguments that emerged from the discussion at the Clinic’s June 21, 2010, expert workshop on CCS liability, oversight, and trust fund issues.


Statutes, Ordinances, and Guidance

The CCS Liability Act of 2010.  This proposed federal statute establishes a detailed liability framework for carbon capture and sequestration to provide certainty, assuage public concerns, and remove barriers to CCS projects.

Climate Adaptation Procurement Guidance.   This memorandum proposes and explains guidance under which the City of Boston could incorporate climate adaptation planning in its procurement process.

Climate Adaptation Article 80 Guidance and Checklist.  This memorandum proposes and explains guidance and a checklist under which the City of Boston could incorporate climate adaptation considerations in its Article 80 development review process.


Comments on Regulations and Other Agency Actions

Comments on D.P.U. Dockets 15-120, 15-121 and 15-122 for approval of Grid Modernization Plans. On April 14, 2016, the Clinic submitted comments in the Massachusetts Department of Public Utilities (DPU) proceedings reviewing requests by investor-owned electric companies to approve their proposed grid modernization plans. The Clinic recommended that DPU review the proposed plans from a holistic energy justice perspective that considers access to benefits from innovation in the electric sector as well as impacts on consumer costs. The Clinic also asked that DPU create opportunities for the development and integration of virtual power plants into Massachusetts’ electric system as a way of advancing DPU’s vision of a modern grid that is cleaner, more efficient and more reliable while empowering customers to manage and reduce their energy costs.

Comments on D.P.U. Docket 15-155 regarding tariff changes proposed by National Grid. On April 6, 2016, the Clinic submitted comments in the Massachusetts Department of Public Utilities (DPU) Docket 15-155, regarding a utility’s request for approval of new electric distribution rates. The Clinic recommended that DPU review the proposed plans from an energy justice perspective and proposed the creation of a new tariff for virtual power plants to promote the deployment of distributed energy resources.

Comments on DOI’s Draft Regulations on Oil and Gas and Sulphur Operations on the Outer Continental Shelf – Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf. On May 27, 2015, the Clinic submitted comments on the Department of the Interior’s (“DOI”) proposed regulations for offshore exploratory oil drilling in the Arctic. The Clinic supported the agency’s proposals to require that operators maintain a secondary drill rig in the Arctic to respond to potential losses of well control and that operators have prompt access to, and immediately deploy, source control and containment equipment in the event of an oil spill.

Comments on BOEM’s Draft Second Supplemental Environmental Impact Statement (DSSEIS) for the Chukchi Sea Planning Area, OCS Oil and Gas Lease Sale 193. On December 22, 2014, the Clinic submitted comments on the Bureau of Ocean Energy Management’s (BOEM) Draft Second Supplemental Environmental Impact Statement (DSSEIS) for the Chukchi Sea Planning Area, OCS Oil and Gas Lease Sale 193. The Clinic’s comments focused on BOEM’s analysis of the impacts of a Very Large Oil Spill, particularly (1) BOEM’s assumption that operators could stop an end-of-season spill during the Arctic winter and (2) shortcomings in the analysis of impacts of oil spill dispersants on wildlife and indigenous communities.

Comments on Proposed Regulations to Implement the Fishery Management Plan for Regulating Offshore Aquaculture in the Gulf of Mexico. On October 27, 2014, the Clinic, in collaboration with the Environmental Law Institute (ELI), submitted comments on regulations proposed by the National Marine Fisheries Service (NMFS) to implement the Fishery Management Plan for Regulating Offshore Aquaculture in the Gulf of Mexico (FMP). The Clinic and ELI made a number of recommendations to help the NMFS further address and minimize environmental risks and impacts of offshore aquaculture.

Comments on PHMSA’s Advanced Notice of Proposed Rulemaking for Oil Spill Response Plans for High-Hazard Flammable Trains. On September 30, 2014, the Clinic, in collaboration with Earthjustice, the Sierra Club, ForestEthics, and Oil Change International submitted comments on an Advanced Notice of Proposed Rulemaking issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the U.S. Department of Transportation (DOT) on potential revisions to its rules establishing the threshold for comprehensive oil spill response planning (OSRPs) by railroads carrying crude oil.

Comments on Draft Safety Culture Policy Statement for Offshore Drilling.  On March 20, 2013, the Clinic submitted comments to the Bureau of Safety and Environmental Enforcement (BSEE) on BSEE’s Draft Safety Culture Policy Statement for Offshore Drilling.  In the comments, the Clinic argues that the draft’s focus on process safety is overly narrow, and that the Bureau should “guide organizations to design a safety culture that embeds a meaningful commitment to environmental safety and protection.”

Comments on USDA Proposed Changes to Nutrition Standards for School Lunch Programs.   On April 12, 2011, the Clinic submitted comments to the U.S. Department of Agriculture on its proposed changes to the nutrition standards for school lunches.  The Clinic’s comments urged the Department (1) to require a daily vegetarian option to protect the health of students with religious dietary restrictions, (2) to shift its commodity subsidies to support the purchase of more fresh fruit and vegetables, and (3) to broaden its regulatory impacts analysis to include the environmental impacts of meat production.

Comments on the Control of Emissions from Large Compression-Ignition Engines on Ocean-Going Vessels.  On March 6, 2008, the Clinic submitted comments to the U.S. Environmental Protection Agency on the agency’s Advanced Notice of Proposed Rulemaking regarding the regulation of emissions from large (Category 3) engines on ocean-going vessels.  In particular, the Clinic urged the agency to apply the Category 3 regulations to foreign-flagged vessels.

Comments on Proposed Modifiction of General Permit WGMR064.  On November 16, 2011, the Clinic submitted comments on the Pennsylvania Bureau of Waste Management’s proposed revisions to general permit WGMR064.  The revision would allow the use of natural gas well brines for dust suppression and road stabilization purposes.


Amicus Briefs

Amicus Brief, Exxon Mobil Corporation v. Office of the Attorney General of the Commonwealth of Massachusetts (Mass. Appeals Court No. 2017-P-0366). On June 7, 2017, the Emmett Clinic filed an amicus brief on behalf of five former Massachusetts attorneys general in a case involving a claim by Exxon Mobil that the current AG, Maura Healey, should not be allowed to use a civil investigative demand (“CID”) to compel Exxon to release information regarding its climate change-related disclosures.

Amicus Brief, Murray Energy Corporation, et al. v. United States Environmental Protection Agency, et al. (D.C. Cir. No. 16-1127 and consolidated cases). On January 25, 2017, the Emmett Clinic filed an amicus brief in the U.S. Court of Appeals for the D.C. Circuit on behalf of Elsie M. Sunderland and eight other scientists in a challenge to EPA’s supplemental cost consideration for the Mercury and Air Toxics Rule.

Amicus Brief, State of West Virginia, et al. v. United States Environmental Protection Agency, et al. (D.C. Cir. Nos. 15-1363 and consolidated cases). On April 1, 2016, the Emmett Clinic filed an amicus brief in the D.C. Circuit on behalf of the Union of Concerned Scientists to defend the Environmental Protection Agency’s Clean Power Plan as a vital component of United States’ efforts to address climate change as well as “a strong demonstration to other world leaders” of the United States’ commitment to the December 2015 Paris Agreement.

Amicus Brief, State of Michigan, et al. v. Environmental Protection Agency, et al. (U.S. 14-46 and consolidated cases). In March 2015, the Emmett Clinic filed an amicus brief in the U.S. Supreme Court on behalf of the Union of Concerned Scientists to defend the Environmental Protection Agency’s regulations limiting emissions of mercury and other hazardous air pollutants from power plants. In its brief, the Clinic argued that Congress, in directing EPA to issue regulations if “appropriate and necessary,” intended that the agency make a scientific decision based on the public health impacts of the industry’s emissions.

U.S. Department of the Interior v. Federal Energy Regulatory Commission (1st Cir. No. 13-2439). In April 2014, the Clinic filed an amicus brief in the U.S. Court of Appeals for the First Circuit on behalf of nonprofit organizations regarding historic preservation issues relating to a Federal Energy Regulatory Commission (FERC) decision to amend the license for a hydroelectric project that impacts the Pawtucket Dam in the Lowell National Historical Park. The Clinic argued that the project approved by FERC would adversely affect the Pawtucket Dam in a manner that contravenes the Lowell National Historical Park Act’s prohibition of adverse effects on the Park’s resources.

Amicus Brief, Utility Air Regulatory Group, et al. v. U.S. Environmental Protection Agency (U.S. 12-1146 and consolidated cases).   In January 2014, the Clinic filed an amicus brief in a U.S. Supreme Court case involving challenges to EPA’s regulation of greenhouse gas emissions from stationary sources under the Prevention of Significant Deterioration program of the Clean Air Act.  In the brief, filed on behalf of Calpine Corporation, the Clinic described Calpine’s experience as a company that had gone through the PSD permitting process for greenhouse gases on six occasions.  In contrast to the assertions of some of the petitioners in the case, Calpine’s experience demonstrated that GHG PSD permitting has not resulted in excessive delays or costs.

Amicus Brief, Brockton Power Company, LLC v. Energy Facilities Siting Board (Mass. SJC No. 11405).  In February 2014, the Clinic filed an amicus brief in support of a decision by the Massachusetts Energy Facilities Siting Board disapproving the use of the City of Brockton’s municipal water supply as the primary source of cooling water for a proposed electric-generating facility.  The Clinic argued, on behalf of non-profit conservation and resource stewardship groups, that the impacts of such proposed large water uses must be evaluated with respect to both individual water bodies and the watersheds in which those waters are located.

Amicus Brief, City of Brockton v. Energy Facilities Siting Board (Mass. SJC No. 11406).  Questions before the Massachusetts Supreme Judicial Court in this case included whether the Massachusetts Energy Facilities Siting Board failed to appropriately consider whether a proposal to construct a new power plant complied with the Massachusetts Executive Office of Energy and Environmental Affairs’ Environmental Justice Policy.  The Clinic, on behalf of an environmental advocacy organization, argued that, when a project has potential to impact environmental justice neighborhoods, the Environmental Justice Policy requires both enhanced opportunities for public participation and equal protection against environmental burdens, including an enhanced analysis of impacts on environmental justice communities.

Amicus Brief, Decker v. Northwest Environmental Defense Center (U.S. No. 11-338 and 11-347).  The question before the U.S. Supreme Court in Decker was whether channeled stormwater runoff from industrial logging operations is subject to the permitting requirements of the Clean Water Act.  In October 2012, the Clinic filed an amicus brief on behalf of a professor of forest road engineering that described the ways in which the construction, operation, and maintenance of logging roads and associated drainage structures are integral parts of an industrial activity—namely, mechanized forestry.

Amicus Brief, White Stallion Energy Ctr., LLC v. U.S. Environmental Protection Agency (D.C. Cir. No. 12-1100).  In this case, the D.C. Circuit is reviewing challenges to the Environmental Protection Agency’s landmark regulations governing emissions of hazardous air pollutants from coal-fired power plants.  The Clinic, on behalf of a group of law professors including Professors Freeman and Lazarus, argued that EPA’s regulatory approach was justified by the history and text of the Clean Air Act.

Amicus Brief, Center for Food Safety v. Vilsack (9th Cir. 12-15052).   In April 2012, the Clinic filed an amicus brief on behalf of organic farmers, producers of organic foods, and organic advocacy organizations in a case challenging the Department of Agriculture’s decision to allow the unrestricted use of Roundup-Ready alfalfa (RRA).  The Clinic argued that the agency’s decision will cause significant economic harm to the organic industry and that a more limited deregulation decision, which imposed geographic restrictions and buffer zones, would reduce this harm.

Amicus Brief, Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers (U.S. 09-247).  In September 2009, the Clinic filed an amicus brief in support of a petition for certiorari in a case challenging the Army Corps of Engineers’ decision to issue permits to coal mining companies to engage in activities that would result in the burial of more than 13 miles of Appalachian streams.


 Guides

 

A Manual for Citizen Scientists Starting or Participating in Data Collection and Environmental Monitoring Projects. This manual aims to empower individuals in their roles as citizen scientists and to promote the practice of community-based citizen science as a vehicle for environmental justice. It outlines practical suggestions for how to design and carry out a citizen science project. It also contains an overview of relevant laws and regulations, as well as technical suggestions regarding data collection, analysis, and compliance with relevant scientific and quality standards.

A Landowner’s Guide to Hydraulic Fracturing: Addressing Environmental and Health Issues in Oil and Gas Leases (Revised Edition, July 2014).  This expanded and revised edition of the guide builds upon the previous edition.  In particular, it is aimed at landowners across the country and contains information relevant for property owners who are considering whether to sign a lease to allow either oil or gas extraction by hydraulic fracturing, including proposed lease language.

Simple Ways to Save Money and the Environment: Practical Tips on Energy Use from the Harvard Environmental Law and Policy Clinic. In October 2008, the Clinic issued guides for consumers in nine northeastern states, explaining how to conserve energy, purchase clean energy, and qualify for tax credits and other incentives for renewable energy generation.


 Articles

Shaun A. Goho, The Legal Implications of Report-Back in Household Exposure Studies, Environmental Health Perspectives (May 6, 2016).

Elsie M. Sunderland, et al., Benefits of Regulating Hazardous Air Pollutants from Coal and Oil-Fired Utilities in the United States, Enviro. Sci. Technol. (January 15, 2016) (Shaun Goho and Wendy Jacobs were contributing authors on this report).  Click here for related news release.

Shaun A. Goho, Municipalities and Hydraulic Fracturing: Trends in State Preemption, Planning & Envtl. L., July 2012, at 3.

Nicole Rinke & Sarah Fort, Legal Options for Municipal Climate Adaptation in South Boston: An Example for Connecticut Coastal Jurisdictions, 5 Sea Grant L. & Pol’y Rev. 89 (2012).