From across the campus to around the globe, the Harvard Law School Environmental Law Program is making waves. Students, faculty, and staff are forging groundbreaking scholarship, connecting with decision-makers, and engaging in critical policy discussions around today’s biggest energy and environmental challenges.
ELP News & Events
Lazarus Argues Before Supreme Court
March 25, 2017
Monday, March 20 was a busy day in Washington, DC, including at the Supreme Court. Professor Richard Lazarus argued before the Supreme Court in Murr v. Wisconsin. The case addresses an important regulatory takings issue stemming from the 1978 case Penn Central Transportation Co. v. New York City. The Court is considering how to define the baseline “parcel as a whole” to determine whether government action constitutes a regulatory taking. As the advocate for St. Croix County, Wisconsin, Professor Lazarus argued that to determine the “denominator” of property at issue in a regulatory taking analysis, the Court should consider multiple factors: economic impact, reasonable expectations based on state law, and physical and geographic characteristics of the parcel. Professor Lazarus is an experienced Supreme Court advocate who has participated in 42 cases and 14 oral arguments.
Konopacky Presents Watershed Management Findings at Symposium
February 24, 2017
EPI fellow Jamie Konopacky attended and presented at the 9th annual watershed management symposium focused on urban and agricultural collaborations in Dubuque Iowa on February 9. Jamie discussed topics covered in her forthcoming publications. The first part of her talk focused on developing a healthy watershed policy matrix through amendments to and integration of Clean Water Act and Farm Bill conservation programming, and the second part of her talk focused on opportunities to evolve state urban stormwater, agricultural nonpoint and TMDL programming to better support a small watershed policy approach to restoring nutrient impaired waterbodies. Other presenters at the conference discussed a diverse array of topics including Iowa’s leadership in nitrate water quality monitoring, the pending Des Moines Water Works lawsuit, agricultural conservation practices, and development and implementation of urban stormwater programming and projects.
Konschnik’s Study Finds High Level of Hydraulic Fracking Well Spills
February 22, 2017
A new study co-authored by Harvard Environmental Policy Initiative Director Kate Konschnik in the journal Environmental Science & Technology used state-level data to assess the scope and frequency of spills at hydraulic fracturing wells. The research also uncovers the inconsistent state reporting schemes for well spills, which Konschnik calls “scattershot.”
Using data from four states, the authors analyzed spills associated with unconventional oil and gas development at 31,481 hydraulically fractured wells from 2005 to 2014. Their analysis identified 6,648 spills in those states, Colorado, New Mexico, North Dakota, and Pennsylvania, over 10 years. The study found that 2 to 16 percent of fracking wells in the four states spill annually. North Dakota had the highest reported spill rate, with 4,453 incidents over the decade. Across all states, the spill risk is highest in the first three years of the well’s production.
The authors conclude that improved requirements for reporting spills at hydraulic fracturing sites could help to identify and avoid spills, as well as mitigate environmental harms. While reporting rates varied by state, this study provides critical insight into the frequency of spills associated with hydraulic fracking — and the paucity of data on those incidents across the country. The authors conclude that along with better data collection, transparency in data sharing and analysis will also be increasingly critical to reducing future spills.
ELP Hosts Environmental Law Boot Camp on Capitol Hill
February 3, 2017
In the early days of the 115th Congress, many proposals are being floated to disapprove of recently promulgated federal agency environmental regulations and amend environmental statutes. On January 25, Harvard Law School’s Environmental Law Program provided an environmental law “boot camp” to Capitol Hill staffers to provide an overview of major environmental statutes, recent agency rulemakings, and landmark cases. The training also reviewed key components of administrative law and the Congressional Review Act.
Law professors who are leading experts on environmental and administrative law topics including the Clean Air Act, Clean Water Act, public lands law, and more presented to a standing-room-only crowd of nearly 100 staffers. Presenters included Jody Freeman of Harvard Law School, Richard Lazarus of Harvard Law School, Matthew Stephenson of Harvard Law School, JB Ruhl of Vanderbilt University Law School, Robert Anderson of the University of Washington Law School, Mark Squillace of the University of Colorado Law School, and Jon Cannon of the University of Virginia Law School.
Freeman and Lazarus Discuss What’s Ahead in the Trump Administration
January 30, 2017
On January 30, Professors Jody Freeman and Richard Lazarus gave a talk at Harvard Law School examining why the Trump administration portends a historic shift on environmental and energy policy. The event, which was standing room only, drew a wide range of students from across the university and community members. Freeman and Lazarus addressed what makes this election potentially unprecedented for environmental law, what is at stake, and what all of us can do.
Freeman and Lazarus began by discussing the progress on environmental law in the Obama administration across executive agencies, highlighting clean air protections including fuel efficiency standards, the Clean Power Plan, land and ocean conservation through national monument designations under the Antiquities Act, entering the Paris climate agreement, and more. They then turned to potential vulnerabilities for environmental law in the new administration, including rolling back a range of public health protections in the Clean Water Act and Clean Air Act, weakening fuel standards, and withdrawing from international climate commitments.
For most post-inauguration analysis, don’t miss Professor Freeman’s latest blog post, which weighs in on why Trump’s new Executive Order that requires that two rules be “identified for elimination” for every new one proposed is “arbitrary, not implementable, and a terrible idea.”
EPA Administrator Gina McCarthy Receives 2016 Horizon Award
November 21, 2016
On November 16, the Harvard Environmental Law Program presented the 2016 Horizon Award for Environmental Leadership to EPA Administrator Gina McCarthy. The Harvard Environmental Law Program presents the Horizon Award each year to an individual who has made extraordinary contributions to environmental law and policy. Past awardees include Justice Stevens, Bruce Babbitt, Lisa Jackson, and Frances Beinecke.
In her introduction of Administrator McCarthy, Professor Jody Freeman discussed the incredible achievements of the EPA in the last 8 years, from doubling fuel economy standards to designing the groundbreaking Clean Power Plan to limit power plant emissions. On a personal note, Freeman praised McCarthy’s sense of humor and noted her love of cooking shows and the Boston Red Sox. Presenting the award, Gina Angiolillo (J.D. 2018) thanked McCarthy for her leadership, saying, “As an environmental law student, Administrator McCarthy’s unwavering energy and optimism—and love of the Red Sox—is both inspiring and sustaining.” Boston Red Sox Vice President and Harvard Law alumni David Freidman was also on hand to celebrate McCarthy’s accomplishments and congratulate her on behalf of the team.
In her remarks, Administrator McCarthy discussed the landmark accomplishments of her tenure at EPA, crediting her “remarkable” and hardworking team. She offered a hopeful message about the survival of those accomplishments in the new administration, saying, “We will continue to move forward. Our work is solid and will last.” Administrator McCarthy also encouraged students from across the university in attendance to consider careers in public service.
ELP Identifies Key Energy Issues Facing Next President in New Report
October 15, 2016
As all eyes are on the presidential election, ELP’s experts are already analyzing the most pressing energy issues the new administration will have to face. Environmental Policy Initiative Director Kate Konschnik and Senior Fellow Ari Peskoe published a new report, “Illuminating the Energy Policy Agenda: Electricity Sector Issues Facing the Next Administration.” Co-authored with colleagues from the Duke Nicholas Institute and UNC School of Law, the report describes decision points the next President will face in the areas of interstate electricity markets, climate policy, nuclear energy, natural gas, economic opportunity for coal communities, and federal purchasing. As part of the report’s roll-out, the team penned an op-ed in The Hill, and hosted a webinar for states, financial advisors, industry, and academia.
SAVE THE DATE: “Climate Change Displacement: Finding Solutions to an Emerging Crisis”, October 20-21, 2016
The Clinic, along with the Immigration and Refugee Program and the International Human Rights Clinic, welcomes you to join us for a conversation with Mary Robinson, former President of Ireland and current UN Special Envoy on El Nino and Climate, and Dean Minow on October 20th; as well as a panel examining the challenges at the intersection of climate change, human rights, and displacement on October 21. For more information, click here.
ELP Hosts Deepwater Horizon Pre-Release Screening
September 29, 2016
The Environmental Law Program and Lionsgate Entertainment hosted a pre-release screening of the major motion picture Deepwater Horizon on September 28. Professor Richard Lazarus chaired President Barack Obama’s Commission on the Deepwater Horizon Gulf Oil Spill. After the screening, Professor Lazarus and Commission attorneys Sambhav Sankar and Saritha Komatireddy discussed the film and their experience investigating the oil spill.
The Oil Spill Commission’s Report to the President is available here.
Freeman and Lazarus Weigh in on D.C. Circuit Oral Argument
September 28, 2016
On September 27, the D.C. Circuit heard oral argument on the Clean Power Plan. Professors Jody Freeman and Richard Lazarus assessed the outcome of the oral argument and shared their take with E&E News On Point. Professor Freeman reported that overall, there is reason for EPA to be cautiously optimistic. Watch their full discussion here.
ELP Welcomes Students Back to Campus
September 21, 2016
On Tuesday, September 20, ELP faculty and staff hosted a welcome BBQ for law students interested in environmental and energy law. Professor Jody Freeman provided an overview of the opportunities for students to get involved on campus.
Get involved in the Environmental Law Clinic
Professor Wendy Jacobs introduced students to the Emmett Environmental Law Clinic’s broad range of work. In addition to enrolling in the clinic for a semester or more, students can take on small projects throughout the year.
Work on a policy project
Environmental Policy Initiative Director Kate Konschnik reviewed opportunities for students to work as research assistants or through independent study in a range of cutting-edge policy areas.
Take environmental courses
Don’t miss the wide range of environmental law related course offerings at HLS this year, spanning energy law, food law, natural resources, animal law, and more.
Jody Freeman and Carl Pope Win Debate about EPA Authority
September 8, 2016
Has EPA gone overboard in its regulation? Is the Clean Power Plan an innovative initiative for cutting power plant pollution or does it exceed constitutional limits? These questions animated a debate in which Professor Jody Freeman and former Sierra Club Executive Director Carl Pope squared off against Charles Connell of Rice University and Michael Nasi, an environmental and energy attorney. Intelligence Squared hosted the debate, which was held on September 7 before a live audience and broadcast to viewers on a livestream.
Freeman and Pope, who argued that that Obama Administration’s Clean Power Plan and other pollution control policies are firmly within legal bounds, won the debate. Audience members weighed in by voting before and after the debate, both live and online. In the live audience, Freeman and Pope’s position won with 72% support. In the online audience, they won with 68% of votes, picking up all of the previously undecided voters and swaying 12% of the other side’s previous supporters. Find out more about the debate here.
Policy Initiative Convenes Experts to Discuss Electricity Regulation
July 28, 2016
On July 25, the Harvard Environmental Policy Initiative convened a stellar cast of energy law faculty, current and former public utility commissioners, and other industry experts to discuss the legal framework for tomorrow’s electricity sector. EPI co-hosted the Nashville workshop with Duke University’s Nicholas Institute and the University of North Carolina’s Center for Climate, Energy, Environment, and Economics (CE3). The workshop is the third run by PowerShift, a project conceived by EPI and the Nicholas Institute, and the second to coincide with a major conference of the National Association of Regulatory Utility Commissioners (NARUC).
FERC Commissioner Cheryl LaFleur provided the keynote during the workshop lunch. Other speakers included former FERC Chairman Jon Wellinghoff; Professor Shelley Welton from the University of South Carolina; State Commissioners Ann Rendahl (WA), ToNola Brown-Bland (NC), and Anne Hoskins (MD); Michigan Agency For Energy Executive Director Valerie Brader; Carrie Jenks, Senior VP at the consulting firm MJ Bradley & Associates; and Greg Dotson, Vice President for Energy Policy at the Center for American Progress.
EPI staff Ari Peskoe and Kate Konschnik worked with Nicholas Institute’s Jonas Monast to design the workshop, which featured discussions about utility rate design, the federal-state interplay in electricity regulation, and the sector issues facing the next President of the United States.
EPI Director Kate Konschnik said there were many opinions about what tomorrow’s grid should look like and how to get there. “It’s vital for the legal community to engage in these discussions because the decisions being made – from generation choices to transmission investments – are influenced by the regulatory rules of the road, whether those are statutes, utility commission decisions, or electricity market rules.”
PowerShift engages academics and practitioners in discussions about the market rules and regulations needed to create a reliable, affordable, equitable, and cleaner grid.
EPI Fellow Konopacky Investigates Wisconsin Watershed Permitting
July 15, 2016
Harvard Environmental Policy Initiative (EPI) Fellow Jamie Konopacky travelled to Wisconsin to research creative watershed compliance approaches to nutrient pollution. Jamie met with the executive directors and sustainability representatives at all of the state’s metropolitan sewerage districts, regulatory and permitting officials, county conservation representatives, and NGOs. The diverse group of stakeholders provided in-depth insight into their experiences with the state’s innovative watershed permits and programs for waste water treatment facilities, municipal storm water systems, and farms.
Jamie will use this research for an EPI paper discussing the history, current status, and possible future trajectory of Wisconsin’s watershed policies and projects. The paper is a great starting point for new watershed projects in that state and across the country. The work is particularly timely as cities and towns grapple with storm water permit compliance and states reshape their impaired waters programs in response to 2013 EPA guidance.
Professor Lazarus Files Supreme Court Brief
June 24, 2016
Professor Lazarus has filed a brief in the Supreme Court on behalf of St. Croix County, Wisconsin, in the case of Joseph P. Murr v. State of Wisconsin and St. Croix County. The case will examine the issue of regulatory takings under the Fifth Amendment. Specifically, the case addresses minimum acreage requirements on a stretch of the St. Croix River that is protected under the Wild and Scenic Rivers Act. The case could have important implications for reducing the impact of development in critical watersheds, including the Chesapeake Bay. More broadly, this case could make it easier or more difficult for challengers going forward to demonstrate that an environmental regulation has amounted to an unconstitutional “taking” of property.
Professor Lazarus explained, “This case raises the so-called ‘denominator issue’ first written about by Professor Frank Michelman, my own first year property law professor, in his classic Harvard Law Review article published in 1967. The question concerns how one defines the “property” allegedly being taken by government regulation in evaluating whether the adverse economic impact of the regulation on private property has ‘gone too far,’ in the famous words of Oliver Wendell Holmes in his 1992 opinion for the Court in Pennsylvania Coal v. Mahon.”
In regulatory takings cases, government regulators have preferred to define the “denominator” property broadly, since doing so minimizes the adverse economic impact of a taking. On the other hand, takings plaintiffs prefer very narrow definitions of property, which make the adverse impact seem relatively greater. “Since 1978, and its ruling in Penn Central Transportation v. New York City, the Court has opted for the former, holding that courts should consider ‘the parcel as a whole,’ but in 2003 in Palazzolo v. Rhode Island the Court indicated some ‘discomfort’ with that rule,” Lazarus said. “The current case before the Court provides the Court with it first opportunity since Palazzolo to consider the ‘denominator issue’ and decide whether to rethink, refine, or reaffirm the ‘parcel as a whole’ approach of the past four decades.”
Professor Lazarus worked with an outstanding team of Harvard Law students who performed significant initial research and played an important role in reviewing and editing drafts of the brief. Those students include Kavya Naini, Zoe Bedell, Chen-Chen Jiang, Samuel Block, Meghan Cleary, and Patrick Noth. Several additional students helped to citecheck the brief, including Tessa Gellerson, Jenya Godina, and Keith Thomas.
Peskoe Discusses Rooftop Solar with FTC
June 24, 2016
Ari Peskoe, Senior Fellow at the Policy Initiative, was a panelist at a Federal Trade Commission (FTC) workshop about distributed solar generation. Peskoe’s presentation focused on the role that state utility regulation plays in setting the terms and conditions for ratepayer adoption of rooftop solar. His thesis was that the one hundred year old utility business model is at odds with the widespread deployment of rooftop solar, and that investor-owned utilities have been using the regulatory system to insulate themselves from market pressures.
His presentation was based on a paper, entitled “Unjust, Unreasonable, and Unduly Discriminatory: Electric Utility Rates and the Campaign Against Rooftop Solar” that appears in the current issue of the Texas Journal of Oil, Gas, and Energy Law.
Professor Broad Lieb to Discuss Harvard Food Law Clinic Work in Open Lecture
June 7, 2016
The Harvard Law School Open Lecture Series (HLX) will host a talk by Professor Emily Broad Leib, Director of the Food Law and Policy Clinic, on The Future of Food: How the Food Law and Policy Clinic is Improving Our Food System. Professor Broad Lieb will discuss the work being done at the HLS Food Law and Policy Clinic and the intersection of law and the production and consumption of food.
The talk will be held on Wednesday, June 15, 2016 from 12:00 p.m. – 1:00 p.m. ET. It is a virtual session. RSVP here.
The one hour, monthly HLX Open Lecture Series is an alumni engagement program that provides HLS alumni around the globe with an opportunity to hear from HLS faculty with the convenience of being in your own office.
Clinic’s Shaun Goho Authors Paper on the Legal Implications of Report-Back in Household Exposure Studies
June 3, 2016
Staff Attorney Shaun Goho recently authored a paper that was accepted for publication in the peer-reviewed journal Environmental Health Perspectives entitled The Legal Implications of Report-Back in Household Exposure Studies.
In a household exposure study, researchers sample the air or dust in a home and analyze those samples to determine the presence and concentration of different chemicals. It is common in such studies to notify the owners or occupants of those homes about the results of the analysis of the samples taken from their homes—a process known as report-back. Because report-back in household exposure studies provides information about the presence of potentially-harmful chemicals inside a home, it is possible that the receipt of such results will create legal duties for the study participants.
This paper is the first study to systemically examine the potential legal implications of report-back in household exposure studies. After reviewing federal and state hazardous waste laws, real estate transfer laws, landlord/tenant laws, and premises liability tort laws, Goho concludes that in most circumstances, study participants will not have any legal duties to disclose their individual study results to other people or government agencies. In the rare circumstances when such a duty will arise, it is usually when the identified chemical is one that could be harmful to the occupants of the home—meaning that the study participants are still better off learning their individual results, even if a legal disclosure duty might therefore arise.
Goho recommends that researchers should continue to share the results of household exposure studies with participants, but that they should disclose these legal risks through the informed the consent process. The paper includes recommended language for informed consent forms.
This paper results from a multi-year collaboration between the Clinic and the Silent Spring Institute.
Click here to view the abstract and review the advance publication on the Environmental Health Perspectives website.
Clinic Submits Comments in Massachusetts Grid Modernization Proceedings and Electric Rate Case
May 24, 2016
In April 2016, the Clinic submitted comments to the Massachusetts Department of Public Utilities (“DPU”) in grid modernization proceedings and an electric rate case. The Clinic asked DPU to apply a holistic energy justice perspective to decisions affecting electricity rates and the integration of, and access to, innovative technologies to the electric grid. The Clinic also proposed mechanisms to support the development of virtual power plants, which can help meet the Commonwealth’s energy and environmental goals. Clinic students Nadia Arid (’16) and Jee Yun Oh (’17) testified at DPU’s public hearing on utilities’ proposed grid modernization plans. The Clinic’s comments were reported on in Microgrid Knowledge.
Environmental Law & Policy Clinic Hosts State Discussion of Legal Theories for Climate Change Responsibility
May 11, 2016
On Monday, April 25th, the Emmett Environmental Law & Policy Clinic hosted a workshop attended by staff from state Attorneys General offices to discuss the latest climate science and to think critically about legal theories for potentially assigning responsibility for climate impacts. The workshop, organized in collaboration with the Union of Concerned Scientists, featured presentations by Harvard Law School students Byron Ruby (JD ’17) and Alice Lee (LLM ’16), building on work by students Olivia Bensinger (JD ’17), Brenden Cline (JD ’16), Joshua Friedmann (JD ’17), and Ross Peterson (JD ’17) during a prior semester.
“This was an incredible learning opportunity,” said Ruby. “It was exciting to research cutting edge environmental issues and present my findings to practicing attorneys and leading academics.”
The workshop also featured presentations by scientists on projected climate change impacts and the attribution of different impacts to human influences on the climate, drawing from the findings of the recent National Academies of Sciences report, Attribution of Extreme Weather Events in the Context of Climate Change.
Panelists included Emmett Clinic Senior Clinical Instructor Shaun Goho, as well as Cara Horowitz (UCLA Law School), Phil Mote (Oregon State University), Naomi Oreskes (Harvard University), Peter Frumhoff (UCS), Sharon Eubanks (Bordas and Bordas, PLLC), and Carroll Muffett (Center for International Environmental Law).
Richard Lazarus, the Howard and Katherine Aibel Professor of Law at Harvard University, said “hosting events like this one is a key role for academic institutions like Harvard Law School. What better place to convene practicing attorneys and academics to think critically about emerging legal and scientific issues? To consider dispassionately not just which theories of legal responsibility might be viable, but no less importantly which may not be. We are lucky to have fabulous students and attorneys on staff doing cutting-edge applied research on the most important environmental issues of our time.”
In recent years, the Emmett Environmental Law & Policy Clinic and the Harvard Environmental Law Program as a whole have convened multiple educational workshops for regulated entities, federal, state, and local officials, and other key players on climate change and related issues. The offices of State Attorneys General are an important audience for such programs given their lead role in defending and enforcing the law.
“It is the normal business of Attorneys General staff to keep informed and to have access to the latest thinking about issues important to their work. We were pleased to be able to create a space for them to convene and learn,” said Goho.
Students Meet Slithery Subject of Lawsuit
April 13, 2016
The students in Professor Lazarus’s Advanced Environmental Law course recently had a close encounter with the species they have been studying. The class has been studying a legal challenge to a Fish and Wildlife Service regulation seeking to restrict the interstate trade of some anaconda and python species. The case, U.S. Association of Reptile Keepers v. Jewell, was argued in the D.C. Circuit on April 1. The Franklin Park Zoo brought a Royal Ball Python and a Rosy Boa for the students to meet.
Watch Freeman and Lazarus Discuss Clean Power Plan Outlook
April 13, 2016
Harvard Law School faculty members Jody Freeman and Richard Lazarus and Environmental Policy Initiative Director Kate Konschnik recently discussed the Supreme Court and the future of the Clean Power Plan. Their conversation, hosted by the Harvard University Center for the Environment, is available to view online. As leading experts on the Clean Power Plan, Freeman and Lazarus assessed the impact of the Supreme Court’s recent stay of the rule and the road ahead for litigation in the D.C. Circuit and the Supreme Court.
ELP Attorneys File Clean Power Plan Briefs in D.C. Circuit and Provide Analysis
April 12, 2016
In early April, the Harvard Environmental Law Program team filed two amicus briefs in support of the Clean Power Plan in the D.C. Circuit. Professors Freeman and Lazarus authored a brief on behalf of former EPA Administrators William D. Ruckelshaus and William K. Reilly. Emmett Environmental Law and Policy Clinic attorneys Shaun Goho and Aladdine Joroff authored a brief on behalf of the Union of Concerned Scientists.
ELP faculty and staff have provided ongoing legal analysis of the rule, which will reduce greenhouse gas emissions from existing power plants, the single largest source of greenhouse gas emissions in the nation. Professor Freeman recently authored an article in Foreign Affairs, Obama’s Climate Challenge, assessing the impact of Clean Power Plan litigation on the international climate agreement reached in Paris in the fall. Professors Freeman and Lazarus also wrote a comprehensive Update on the Clean Power Plan: The Knowns and Unknowns. Konschnik and Ari Peskoe of the Environmental Policy Initiative have spoken to groups this spring, including the National Governors Association, the Mid-Atlantic Regional Air Management Association, NARUC, and utility groups, about the Clean Power Plan litigation and ‘no regrets’ clean energy policies.
Professor Lazarus Leads Environmental Law Workshop at University of Tehran
March 23, 2016
Professor Richard Lazarus recently led a three-day workshop on environmental law at the University of Tehran in Iran focused on the challenges of environmental lawmaking in the United States and Iran. Roughly forty graduate students and government officials attended the workshop. Over three days, Professor Lazarus introduced and led discussion of several major challenges of environmental lawmaking, exploring several important environmental topics facing both the United States and Iran. These topics included air pollution, water resource management, fisheries management, climate change law and policy, and environmental justice. While in Iran, Professor Lazarus also delivered two lectures, one on “The State of Environmental Law in the United States Today” at the University of Tehran Kish Island campus, and another at a meeting of the Iranian Association of United Nations Studies on “Paris 2015–COP 21: The United Nations Climate Change Conference and Environmental Law in the United States.” A team of Harvard Law students led by Christi Zaleski, including Brenden Cline, Sara Dewey, and Mary Schnoor provided research assistance and prepared the materials for the workshop, including readings, discussion questions, and role-playing exercises. Two additional students, Rachel Kenigsberg and Cassie Mitchell, provided research assistance in support of the workshop and Professor Lazarus’ other presentations while in Iran.
Clinic and Environmental Defense Fund (EDF) Release Fisheries Co-Management Paper
March 21, 2016
The Emmett Environmental Law & Policy Clinic, in collaboration with Environmental Defense Fund (EDF), released a new report entitled Fisheries Co-Management in the United States: Incentives, Not Legal Changes, Key, which finds that legal or regulatory barriers to the co-management of fisheries are largely non-existent or easily navigated where stakeholder support exists. Co-management is a process in which both regulators and stakeholders share responsibility for managing a fishery. It can result in more sustainable fisheries by providing participants in the fishery with a stake in its long-term health and by reducing antagonisms between regulators and participants. It can also lead to better informed and more flexible management. The paper reviews the Magnuson-Stevens Fishery Conservation and Management Act as well as other federal laws and regulations to identify whether they could pose problems for co-management of fisheries, concluding that these laws present no serious barriers. Building on a comparative analysis of fisheries in New Zealand and Canada, the paper shows that co-management develops when stakeholders are encouraged to participate through a bottom-up process.
Clinic student Lucia Bizikova contributed to the research, analysis, and preparation of this paper under the supervision of Senior Clinical Instructor Shaun Goho.
Professor Freeman Authors Foreign Affairs Analysis
March 16, 2016
Professor Freeman has written an assessment of the impact of Clean Power Plan litigation on the international climate agreement in Foreign Affairs. In “Obama’s Climate Challenge,” Professor Freeman argues that, “It is an overstatement […] to suggest that the success of international climate negotiations rests on the fate of the Clean Power Plan in U.S. courts. Far more decisive will be the outcome of the presidential and congressional elections in 2016.” Read the full analysis here.
Update on the Clean Power Plan: The Knowns and Unknowns
March 2, 2016
By Jody Freeman & Richard Lazarus
(Originally posted on the American College of Environmental Lawyers Blog)
State Reactions to the Stay
Now that the Supreme Court has stayed the Clean Power Plan, States are in the process of deciding whether or not to proceed with implementation planning, and if so, at what pace to do so. The situation is still in flux. States like Pennsylvania, Virginia, Washington State, California, and most of the northeastern states that are part of the Regional Greenhouse Gas Initiative, have all said they will continue planning. Others, like Texas, Kentucky and West Virginia, have declared they will stop. EPA’s official count shows eighteen States as having halted efforts, with nine still deciding, and thirty still working. Even official statements from the States are somewhat misleading, however: some States that have announced a suspension of compliance planning, like New Jersey, are still sending officials to compliance meetings.
Still, there is a risk that, on net, momentum will slow, at least until the legal challenge to the CPP is resolved. That process could take more than two years.
Maintaining Momentum Through “No Regrets” Policies
During that time, anything that can be done to maintain momentum on CPP implementation and related policies that will promote clean energy (regardless of whether the rule eventually is upheld) should be supported, with a priority given to helping States pursue “no regrets” policies that will serve their interests whatever the outcome of the litigation. There are a variety of things States and utilities can do now to address shorter term Clean Air Act obligations, such as regional haze, National Ambient Air Quality Standards, or cross-state air pollution, that also would set them up nicely for CPP compliance should the rule be upheld.
Implications of Justice Scalia’s death
The D.C. Circuit will hear argument on the CPP in June 2016, and is expected to rule on the merits expeditiously, likely by fall of 2016. The panel is viewed as more favorable than not, although certainly not a sure thing: Judge Rogers is seen as the most sympathetic to EPA, Judge Srinivasan is seen as at least open to the government’s arguments, while Judge Henderson is seen as hostile to the rule.
If this panel were to uphold the rule, and the Supreme Court were to remain without a confirmed ninth Justice, it is possible that the Supreme Court could split 4-4, which would normally result in an order affirming the lower court decision. However, there is also a chance that if there were a 4-4 split in a case of this importance and one that would decide the issue once and for all, the Chief Justice would not be content to issue such an order and would instead hold the case over for re-hearing once a ninth Justice is confirmed. If that ninth Justice were appointed by a new Democratic president, the rule’s prospects of being upheld likely would increase; if appointed by a new Republican president, prospects could be the same as they would have been with Justice Scalia on the court. That would require Justice Kennedy, the likely swing vote, to be persuaded by the government to vote to uphold the rule.
There is another interesting wrinkle: the D.C. Circuit panel could change. Judge Srinivasan has been identified as a potential Supreme Court nominee. If he were nominated, he would likely withdraw from pending cases not yet argued in order to prepare for (theoretical) hearings. But then, of course, a new judge would be lotteried in to fill his place, perhaps changing the balance of the panel. One might think this risk worth taking, since Judge Srinivasan in theory would wind up on the Supreme Court, where he might cast the deciding vote in this (and many other) cases. Yet even if Judge Srinivasan were confirmed, he would be recused from the CPP case because of his earlier participation on the D.C. Circuit panel that denied the stay, so the Court would remain at eight Justices for purposes of this case. Again, this would leave the prospect of a 4-4 tie affirming the decision below (and perhaps affirming a decision to strike down the rule).
Next Steps and Timing of Litigation
Whatever the composition of the D.C. Circuit panel, however, and whatever it decides, the losing parties could seek en banc review in the D.C. Circuit. The State and industry challengers would be almost certain to do so, because delay favors their side. This is because the Supreme Court took the unusual step of staying the rule not just until the D.C. Circuit rules on the merits, but for longer: until the Supreme Court either denies certiorari or grants review and decides the case. Delay means the Stay remains in force, which means the deadline for filing compliance plans keeps being pushed off, which means momentum slows, which favors those opposed to the CPP. En banc review is rarely granted, however, and the D.C. Circuit may be reluctant to further delay things by providing it when the Supreme Court has already associated itself with the case (by granting the Stay and making it all but certain review will be granted).
What all of this means is that the earliest the Supreme Court could decide the case–given the time necessary for the cert petition, briefing, argument and deliberation–is likely to be June 2017, and the latest the Court is likely to decide the case is June 2018. That means the Stay could remain in place for more than two years.
The fate of the CPP is clearly in the hands of the Supreme Court, which, with an open seat, is clearly in the hands of the President–and most likely the next president.
Implications for a New Administration
If the Court ultimately upholds the rule, a new president could still withdraw it and replace it with something else, or choose to implement it as-is. A new president might even bargain with a new Congress over suspending the rule in exchange for a more comprehensive economy-wide approach to greenhouse gas regulation, whether a carbon tax or a cap-and-trade approach, or something else. And if the Court, newly constituted, strikes down the Clean Power Plan, a new president would have to decide on Plan B.
EPA has thus far been mum about possible Plan Bs, but obvious options include a narrower interpretation of “best system” that would regulate power plants within the so-called “fence-line” only, relying exclusively on what the rule refers to as “building block 1.” EPA might be able to set a fairly stringent standard based on this building block alone, although doing so might, ironically, leave utilities far less flexibility to use alternative means of compliance than they would have using the agency’s current approach. EPA might also examine the Clean Air Act for other provisions capable of regulating existing power plant emissions, such as section 115, or even set a NAAQS for greenhouse gases–options that have been discussed before and rejected by the agency, but which could always be revisited.
Clinic’s Jacobs, Goho Co-Author Commentary on Health Benefits of Mercury Regulation
February 23, 2016
Clinic Director Wendy Jacobs and Staff Attorney Shaun Goho recently co-authored a perspective commentary with faculty from several universities and departments, including Harvard’s School of Engineering and Applied Sciences (SEAS) and Syracuse University’s College of Engineering and Computer Science, on how the benefits associated with mercury emissions reductions outweigh the costs to industry. The commentary draws three conclusions: 1) the societal benefits of implementing Mercury Air Toxics Standards are much larger than estimated; 2) the unquantified benefits to human health and wildlife are substantial; and 3) the EPA underestimated the benefits of mercury reduction from coal-fired power plants.
Click here for the news article from Harvard SEAS on the commentary.
Click here to view the commentary from the Clinic’s Publications page.
Environmental Policy Initiative Submits Comments to EPA on CO2 Trading
January 21, 2016
The Environmental Policy Initiative submitted comments to EPA on the Clean Power Plan Federal Plan and Model Trading Rules. In August, EPA released the final Clean Power Plan rule, which tasks states with developing plans to regulate carbon dioxide emissions from existing power plants. EPA also proposed model trading rules that states could adopt as part of their plan, and indicated that those rules would serve as the basis for a federally imposed plan on states that do not submit a satisfactory plan to EPA. One key outstanding issue is whether the Federal Plan will be mass-based, which requires power plants to hold emission allowances, or rate-based, which allows power plants to offset their emissions by holding credits generated by renewable energy and energy efficiency providers and other low-emission resources.
To develop its comments, the Policy Initiative listened to state and utility officials, and consulted with electricity and pollution market design experts from academia, non-profits and the private sector. Based on those discussions, the comments urge EPA to:
1. Choose a mass-based emission budget trading program as the Federal Plan;
2. Enable and encourage automatic “linkage” between all mass-based plans, and between rate-based plans applying the subcategory-specific performance rates;
3. Retain the proposal’s flexibility for states subject to a Federal Plan to submit partial plans for allocating allowances;
4. Allow states submitting a partial plan to bring new sources under the cap;
5. Include a robust look-back and adjustment mechanism for the set-aside allowances in the Federal Plan and the Model Trading Rule, and distribute the output-based allocation (OBA) allowances to new NGCCs before the first compliance period;
6. Ensure that allocations to retired units do not delay retirement or create a windfall for companies with retired units; and
7. Set up market mechanisms sufficiently in advance to enable and motivate early market activity.
The Policy Initiative’s complete comments to EPA on the Clean Power Plan Federal Plan and Model Trading Rules are also posted on its Clean Power Plan Resources Page.
EPI Director Konschnik Publishes FracFocus Findings
December 8, 2015
Harvard Environmental Policy Initiative Director Kate Konschnik and Archana Dayalu of Harvard University published their findings on hydraulic fracturing chemical reporting in an article in Energy Policy, Hydraulic fracturing chemicals reporting: Analysis of available data and recommendations for policymakers (January 2016).
FracFocus contains the most comprehensive dataset on fracturing chemicals, but the database has faced criticism over data quality and transparency. In response, FracFocus has published aggregated data, which this article assesses. Specifically, the article analyzes 96,449 FracFocus forms submitted between March 2011 and April 2015. Among other findings, Konschnik and Dayalu determined that rates of withheld chemical information have increased since 2013, apparently unaffected by various legal requirements. However, the authors discovered that systems approach reporting—reporting without attribution to the specific products in the fracturing fluid—reduces information withholding by more than four times. The paper concludes that systems reporting should occur, and that states should retain authority to request product-specific ingredient lists.
The data sets used in the paper are available for public use here. In order to turn any of the text files into a user-friendly excel spreadsheet, you may do the following:
1. Open the text file and save it on your computer.
2. Open Excel and then open the text file.
3. You will be given a prompt by Excel to make some formatting changes.
a. First, click “delimit.” Click next.
b. Second, check “other” and in the box next to “other”, type in a pipe delimiter (“|” – the character above the back slash on your keyboard). Click next.
c. Click finish.
4. You will then have a spreadsheet of a state’s data.
The Environmental Policy Initiative has worked to provide guidance to people affected by shale gas development, investigated best regulatory practices, and analyzed the role that information disclosure plays in regulating development. See more EPI work on shale gas policy here.
Professors Freeman and Lazarus to Write Clean Power Plan Brief
December 3, 2015
President Obama’s Clean Power Plan will reduce greenhouse gas emissions from existing power plants, the single largest source of greenhouse gas emissions in the nation. Today, former EPA Administrators William D. Ruckelshaus and William K. Reilly moved to participate in litigation challenging the rule in the D.C. Circuit. William D. Ruckelshaus served as the first Administrator under President Nixon, as well as under President Reagan. William K. Reilly served as Administrator under President George H.W. Bush.
Professors Jody Freeman and Richard Lazarus, leading environmental law scholars, wrote today’s motion seeking leave for former Administrators Ruckelshaus and Reilly to join the litigation as friends of the court, and will, if leave is granted, also author the amicus brief. The professors already have provided extensive legal analysis of the rule and have disputed arguments that the rule is unconstitutional.
The former Administrators strongly support the Clean Power Plan as a pragmatic and cost-effective pollution control program that falls within the agency’s statutory authority and respects State sovereignty. As former leaders of the agency who had major roles administering the Clean Air Act, they recognize that the Clean Power Plan is an “innovative, cost-effective, and energy-sensitive approach to pollution control that reflects the Agency’s best traditions.”
See today’s press advisory and motion here.
Harvard Law School Oil and Gas Discussion Group Launches
October 28, 2015
The Harvard Law School Oil and Gas Discussion Group launched its 2015-2016 program. The Discussion Group enables graduate students to share their research in a dynamic, multi-disciplinary setting. Participants are studying more than half a dozen disciplines at Harvard Business School, the Harvard Faculty of Arts & Sciences, Harvard Graduate School of Design, Harvard Kennedy School, Harvard Law School, MIT, and Tufts/Fletcher. Topics this semester include the geopolitics of Russian natural gas supplies; international oil contract dispute resolution; global oil markets; the interplay between fossil fuels and renewable energy policies; the “resource curse”; and unconventional oil and natural gas development in Australia.
For more information, please email Kate Konschnik.
Harvard Law School Water Study Group Announced
September 16, 2015
This year, the Water Law Study Group at Harvard Law School will bring together faculty, students, practitioners and scholars interested in the complex issues of water sharing, governance, institutions, rights and law. The Study Group will meet bi-weekly for discussions of works in progress, published works and research and will explore emergent and critical themes in water management.
For more information, please email waterstudygroup [at] lists.law.harvard.edu.
Prof. Freeman Reacts to Appeals Court Dismissal of Challenge to Power Plant Regulations
June 11, 2015
This week, the U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the Environmental Protection Agency’s (EPA) proposed rule to limit greenhouse gas emissions from power plants. The court held that the challenge to the proposed Clean Power Plan, brought by a coalition of coal companies and states, was premature.
Professors Jody Freeman and Richard Lazarus submitted an amicus brief to Court of Appeals in support of the EPA, arguing that the agency’s interpretation of the Clean Air Act is reasonable and entitled to deference. Freeman and Lazarus also engaged in a vigorous debate with Professor Laurence Tribe, who represented Peabody Coal, over the challenge to the rule.
In the opinion, Judge Brett Kavanaugh wrote, “Petitioners are champing at the bit to challenge E.P.A.’s anticipated rule restricting carbon dioxide emissions from existing power plants.” Nonetheless, he concluded, “We deny the petitions for review and the petition for a writ of prohibition because the complained-of agency action is not final.”
Professor Jody Freeman reacted to the ruling today, saying, “As expected, the Court dismissed the challenge because it was premature. It would have been unprecedented to grant review at this stage, before the rule is even final. This was a freebie for industry because they took a shot, lost, and will be back once the rule is finalized. By then though, EPA will have considered all the comments and adjusted the rule to shore up its legal defensibility.”
Freeman added, “Interestingly, the DC Circuit panel didn’t go anywhere near the merits. This is another kind of quiet victory because the panel could have given industry some sustenance—at least something to spin—but they gave them nothing. Everyone should stay tuned though because the minute the rule goes final, likely in August, all the parties will be back.”
Read more reaction to the ruling here.
ELP Convenes Meeting on Natural Gas Leakage in Boston
May 29, 2015
On May 7, EPI Director Kate Konschnik and Clinical Instructor Aladdine Joroff, who co-chairs the Boston Bar Association’s air committee, convened a meeting at the Boston Bar Association on methane leakage from natural gas distribution.
Kathryn McKain, a Harvard graduate student who participates in the EPI Oil and Gas Discussion Group, led by Kate Konschnik, presented her National Academy of Sciences paper, “Methane Emissions from Natural Gas Infrastructure and Use in the Urban Region of Boston, Massachusetts.” The paper finds that Boston’s leaky natural gas infrastructure results in significant emissions of methane, which is one of the most potent greenhouse gases that contribute to climate change. Indeed, 2.7 percent of the natural gas delivered to the Boston area leaks from the aging natural gas delivery system before reaching customers.
The panelists, including Prof. Steven Wofsy of Harvard University, Mark Boling of Southwestern Energy, Commissioner Paul Roberti of the Rhode Island Public Utilities Commission, and Brian Jones, director of MJ Bradley’s Natural Gas Downstream Initiative, discussed policy implications of natural gas leakage in the distribution system. Attendees included representatives of utilities, independent power producers, environmental organizations, and state regulatory agencies.
Read more about McKain’s findings on natural gas leakage from Boston’s aging natural gas distribution system.
On CNN, Professor Lazarus Speaks Out Five Years After Gulf Oil Spill
May 27, 2015
On April 14, Professor Lazarus appeared on a CNN Special Report, Blowout: The Gulf Oil Disaster, marking five years since the Gulf Oil Spill. Lazarus, who served as Executive Director of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, described the “systemic failure” of BP, Halliburton, and Transocean that led to “the nation’s biggest environmental catastrophe.”
The Commission’s 2011 report, Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling, written by Lazarus, recommended improvements in offshore drilling safety to mitigate the risk of future spills. However, five years after the disaster, “Congress has passed not one word of legislation to make any effort to go after and reduce the risk,” Lazarus said.
Read the transcript of the CNN Special Report, Blowout: The Gulf Oil Disaster
2015 Barron Fellows Awarded
Tom Barron Fellowships are awarded to students doing exceptional work within the public interest environmental law field during the summer of 2015. They are supported by author and conservationist T.A. Barron (’82). The 2015 fellowships have been awarded to the following students.
Dr. Dudek Discusses Long March to Reducing Carbon Emissions in China
May 15, 2015
On April 6, the Harvard Environmental Law Program was honored to welcome Dr. Dan Dudek, Vice President of the Environmental Defense Fund China Office, to campus. Dr. Dudek is one of the world’s leading experts in developing cap-and-trade programs to reduce pollution at the lowest possible cost. He is widely credited with developing the cap-and-trade model that led to dramatic reductions in sulfur dioxide, the leading cause of acid rain, in the U.S. Dr. Dudek now leads EDF’s China office, where he designs carbon demonstration projects and develops market mechanisms to address large-scale environmental problems.
The event kicked off Harvard Climate Week, sponsored by the Harvard University Center for the Environment, and was packed with students from all Harvard’s schools. The talk, entitled “The Long March to Reducing Carbon Emissions in China,” focused on what Dr. Dudek sees are the three options to achieving carbon emissions reductions in China: (1) a systemic approach, such as carbon taxes and cap-and-trade markets; (2) slowing the rate of growth of energy demand, such as energy efficiency investments and greener supply chains; and (3) low- or no-carbon energy substitutes, such as solar power.
Dr. Dudek began by pointing out that China contributes 26% of global carbon emissions and that, as a result, “there is no solution to the climate problem that does not travel through Beijing.” He noted several encouraging trends, such as the U.S.-China Joint Announcement on Climate Change last November and China’s new environmental law, which took effect in January after not having been reformed in 25 years. Dr. Dudek then introduced some of EDF’s work in this area, such as helping to organize a series of carbon trading pilots and working to create greener supply chains with major companies like Walmart. While Dr. Dudek remains optimistic, he noted that certain challenges remain, such as transparency in government and minimizing the use of China’s large stores of unconventional gas.
Professors Freeman & Lazarus Recap Oral Arguments in Clean Power Plan Litigation
April 20, 2015
On Thursday, April 16, oral arguments were held before the U.S. Court of Appeals for the D.C. Circuit concerning several state & industry challenges to EPA’s proposed Clean Power Plan. Later that day, Harvard Law School Professors Jody Freeman and Richard Lazarus joined E&ETV OnPoint host Monica Trauzzi to provide their insight as to how the parties fared in court. The professors also discussed their ongoing debate with Professor Tribe regarding his constitutional arguments against the plan.
Asked about her impressions on how arguments went, Freeman called it “a pretty good day for the government and not a particularly good day for industry.” Lazarus agreed, noting that although the parties drew a somewhat conservative panel, the judges appeared sympathetic to EPA. Most tellingly, the judges seemed reluctant to hear the case this early, before EPA’s rule has been finalized. Lazarus explained, “it’s not time for the court to come in yet. [In] the normal course of these things, you wait till there is a final rule.”
Yet, although this challenge may be premature, Freeman says it served as somewhat of a “road test” on the merits, perhaps indicating how the court will decide future challenges to EPA’s finalized rule. As Lazarus put it, “the show is yet to come.”
Professors Freeman and Lazarus Debate Professor Tribe on the Clean Power Plan
April 1, 2015
On March 17, 2015, Harvard Law School Professor Laurence Tribe testified before a House subcommittee that EPA’s Clean Power Plan sets the Agency off on “a constitutionally reckless mission.” He argued that the rule violates the Fifth and Tenth Amendments and the Separation of Powers doctrine.
Professors Freeman and Lazarus responded that “sweeping assertions of unconstitutionality are baseless. Were Professor Tribe’s name not attached to them, no one would take them seriously.”
In a series of articles, Professors Tribe and Freeman and Lazarus explained their positions. The full exchange, beginning with Professor Tribe’s testimony before the Energy and Power subcommittee of the House Energy and Commerce Committee, is below.
Professor Tribe – Why EPA’s Climate Plan Is Unconstitutional (March 20, 2015)
Professors Freeman and Lazarus – A Rebuttal to Tribe’s Reply (March 21, 2015)
Professor Tribe – Reply to Professors Freeman and Lazarus (March 22, 2015)
Professors Freeman and Lazarus – A Followup (March 27, 2015)
A Rebuttal from Professor Tribe (March 29, 2015)
In Politico, Freeman & Lazarus Say Tribe’s Attacks on EPA are “Completely Wrong”
March 25, 2015
Over the past week, Harvard Law School Professors Jody Freeman, Richard Lazarus, and Larry Tribe have been sparring over the constitutionality of EPA’s Clean Power Plan. The debate began when Professor Tribe testified before Congress on March 17, 2015, arguing that EPA’s actions are akin to “burning the Constitution.”
Professors Freeman and Lazarus quickly replied, firmly asserting that these “sweeping assertions of unconstitutionality are baseless. Were Professor Tribe’s name not attached to them, no one would take them seriously.” A series of goodnatured back-and-forths between the professors ensued, in what Professor Tribe labeled an “uncommon event” among Harvard Law faculty.
On March 25, 2015, Professors Freeman and Lazarus were featured in Politico Magazine, where they underscored Professor Tribe’s “flagrant constitutional error.” In their piece, Freeman and Lazarus noted that, while Tribe’s arguments “deserve to be addressed seriously,” they are “completely wrong” and cannot serve the basis for states that may refuse to comply with EPA’s Plan.
NRDC President Frances Beinecke Honored with 4th Annual Horizon Award
March 3, 2015
On March 3, 2015, the Harvard Law School Environmental Law Society presented Frances Beinecke with the fourth annual Horizon Award for her outstanding contributions to environmental, natural resources, and energy law. Ms. Beinecke is the outgoing President of the Natural Resources Defense Council, where she fought tirelessly to find solutions to climate change, protect our oceans and wildlife, and foster sustainable communities. She also recently served as a Commissioner on the BP Oil Spill Commission. Former recipients of the Horizon Award include Justice John Paul Stevens, former Secretary of the Interior Bruce Babbitt, and former EPA Administrator Lisa Jackson.
Environmental Law Society Co-Presidents Kelly Skaggs and Alice Cherry stated, “In choosing this year’s recipient, we focused on people whose work has not only had an outsize impact, but is particularly inspiring to us and has contributed to just environmental solutions. Ms. Bienecke has done all of those things, and we are honored to present her with this award.”
Clinic Files Amicus Brief in the U.S. Supreme Court in State of Michigan v. Environmental Protection Agency
March 4, 2015
On March 4, 2015, the Clinic filed an amicus brief in the U.S. Supreme Court on behalf of the Union of Concerned Scientists in State of Michigan, et al. v. Environmental Protection Agency, et al. (U.S. 14-46 and consolidated cases). This case involves challenges to the Environmental Protection Agency’s regulations limiting emissions of mercury and other hazardous air pollutants (HAPs) from power plants. In its brief, the Clinic argued that Congress, in directing EPA to regulate power plant HAP emissions if “appropriate and necessary,” intended that the agency make a decision based on a scientific analysis of the public health impacts of the industry’s emissions, and that cost would be factored in later when setting the regulatory standards.
Clinic student James Zhu (JD’16) wrote the brief with Clinic Director Wendy Jacobs and Senior Clinical Instructor Shaun Goho.
Professors Freeman and Lazarus Submit Amicus Brief in Support of EPA
March 3, 2015
On February 19, professors Jody Freeman and Richard Lazarus submitted an amicus brief to Court of Appeals for the D.C. Circuit in support of the U.S. Environmental Protection Agency (EPA). The case challenges EPA’s authority under Clean Air Act section 111(d) to regulate carbon pollution from existing power plants. EPA issued a proposed rule in June, and plans to finalize the Clean Power Plan this summer. A coal-mining company filed a petition with the court, requesting that it halt EPA’s rulemaking process because the Agency has no legal authority to issue a final rule about carbon pollution from existing power plants.
The amicus brief addresses the unusual issue of statutory interpretation before the court. In 1990, as part of a package of amendments to the Clean Air Act, each house of Congress passed different versions of section 111(d), and the President signed both into law. Opponents of EPA’s rulemaking argue that the resulting provision prohibits EPA from regulating carbon from existing power plants.
After noting the “highly unusual” nature of the case, in that it challenges a non-final rule, Professors Freeman and Lazarus reply that EPA’s interpretation of the Clean Air Act is reasonable and entitled to deference. They explain why the Senate Amendment cannot be ignored, how both can be read in context with the rest of the statute to require EPA’s rulemaking in this case, and that traditional canons of statutory construction support EPA’s reading.
Kate Konschnik, Director of the Environmental Policy Initiative, is counsel of record on the brief. Kate previously published a white paper about this controversy. Oral argument is scheduled for April 16.
Harvard Environmental Law Review Hosts Symposium on Climate Regulation
On February 27, 2015, the Harvard Law School Environmental Law Review (ELR) hosted a symposium on climate regulation under the Clean Air Act. The event focused on the Supreme Court’s June 2014 decision in Utility Air Regulatory Group v. EPA and its implications for future climate regulation, including EPA’s Clean Power Plan.
The symposium was designed to bring together leading environmental law scholars who, this past fall, published cutting edge articles with ELR on this topic (forthcoming March 2015). ELR was honored to welcome five of these scholars to campus for a panel discussion of their work: Jody Freeman (Harvard Law School), Richard Lazarus (Harvard Law School), William Buzbee (Georgetown Law Center), Megan Herzog (UCLA School of Law), and Craig Oren (Rutgers School of Law). The authors began by presenting their articles’ principal arguments, then participated in a general discussion led by moderator Carrie Jenks (M.J. Bradley & Associates). A reception concluded the event.
Professors Ann Carlson (UCLA School of Law), Thomas McGarity (University of Texas School of Law) and Richard Revesz (NYU School of Law) also published with ELR on this topic, but were unable to attend the symposium.
The event was sponsored by the Milbank Tweed Conference Fund, the HLS Environmental Law Program, the HLS American Constitution Society, the HLS Green Living Program, Themis Bar Review, and the HLS Environmental Law Society.
Lecturer Emily Broad Leib awarded Climate Change Solutions Fund grant
On February 11, 2015, seven grant winners of the inaugural Climate Change Solutions Fund were announced. The $20 million fund is designed to help tackle the challenge of climate change using the levers of law, policy, and economics, as well as public health and science.
Emily Broad Leib, a lecturer at Harvard Law School and director of the HLS Food Law and Policy Clinic was awarded a research grant for her project, “Reducing Food Waste as a Key to Addressing Climate Change.” Broad Leib states that forty percent of food produced in the United States goes to waste. Accordingly, her project aims to address this problem by investigating, amending, and enacting new polices ― such as tax incentives and liability protection ― to remove the barriers to food donation.
“I’m thrilled that through this support we will have the opportunity to expand our work looking at creative ways that we can use law and policy changes to significantly reduce food waste and its harmful environmental impacts, while at the same time increasing food donations and improving food access,” Broad Leib said.
Richard Lazarus Featured in NY Times Debate on Drilling in the Atlantic
February 18, 2015
On February 18, 2015, the New York Times Room for Debate column invited four experts to debate whether the Atlantic coast should be opened to off-shore oil and gas drilling. Arguing in favor of drilling in the Atlantic were Congressman Rob Wittman (R-VA) and Randall Luthi, president of the National Ocean Industries Association. Arguing against drilling in the Atlantic were Sierra Weaver, senior attorney at the Southern Environmental Law Center, and Professor Richard Lazarus, the Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School.
Lazarus, also the executive director of the presidential commission responsible for identifying the root causes of the 2010 Gulf oil spill, asserts that the 2010 spill should serve as a reminder that spills are possible and can cause untold economic and environmental damage. In his piece, “No Safety Net,” Lazarus states, “Offshore drilling can be safely done when subject to a rigorous safety regime. But, Congress has failed to enact a single statute increasing safety in response to the huge regulatory gaps revealed in 2010. Not a single one.” He concludes that drilling in the Atlantic is an unnecessary risk that falls far short on the merits.
Energy Law Fellow Discusses State Compliance with EPA GHG Rule
Ari Peskoe, Energy Law Fellow at the Environmental Policy Initiative, presented at Harvard’s Kennedy School about how existing state laws could be used to comply with EPA’s Clean Power Plan. Under that rule, which is expected to be finalized in the summer of 2015, EPA will set carbon dioxide emission rates for each state’s fleet of power plants, and states will submit plans to EPA demonstrating how they will comply. Those plans must be enforceable under state law.
In his presentation, Ari examined laws in two states, Pennsylvania and Florida, as case studies. He concluded that existing laws in Pennsylvania provide state environmental regulators with authority to cap emissions from power plants. Although the Commonwealth has existing laws about renewable energy and energy efficiency, those laws could be amended to make them more relevant to compliance with the Clean Power Plan. For Florida, Ari discussed various legal authorities that regulators have under existing law. Recent decisions by the state utility commission demonstrate that they are not currently using these authorities to set strong renewable energy or energy efficiency goals.
His conclusion is that states are differently positioned to comply with EPA’s Clean Power Plan. In many states, such as Pennsylvania, existing laws provide a strong starting point for a state compliance plan. Regulators in other states, such as Florida, will either need to reexamine their authority under existing law to achieve more with existing authorities or will need to look to the state legislature to pass new legislation that can form the basis of a compliance plan.
ELP Co-Hosts Forum on “The Use of Land” at 40
January 25, 2015
On October 16–17, 2014, the Harvard Law School Environmental Law Program and the Lincoln Institute of Land Policy co-hosted “The Use of Land at 40: A Forum on What We’ve Learned and What Needs to be Done to Build Healthy, Vibrant, Resilient Communities for the Future.” The event commemorated the 40th anniversary of The Use of Land: A Citizens’ Policy Guide to Urban Growth, the groundbreaking final report of the Task Force on Land Use and Urban Growth, funded by the Rockefeller Brothers Fund and chaired by Laurance S. Rockefeller. LazarusThe conference, which brought together over thirty land use scholars and practitioners, focused on how far we have come in the last 40 years in urban development and land use policy, and considered the trends and challenges that are shaping tomorrow’s communities. The event was supported by a generous grant from the Rockefeller Brothers Fund, with additional assistance from the Packard Foundation, the Harvard University Center on the Environment, and individual donors.
William K. Reilly, principal author of The Use of Land, gave the opening keynote address on Thursday night. His remarks provided a behind-the-scenes look at the writing of the original report, including the incredible teamwork it inspired, the approachable tone it adopted, and the innovative approaches to land use it suggested. On Friday, the day began with a keynote address by Professor Jerold Kayden of the Harvard Graduate School of Design, which set the stage for the day’s conversations. Conference attendees then participated in roundtable discussions throughout the day, moderated by Professor Jody Freeman and Professor Richard Lazarus of Harvard Law School. The discussions were organized around four topics: 1) The Use of Land Revisited: Lessons from the Report and its Recommendations; 2) Current Trends and Innovations and U.S. States and Cities; 3) The New Challenge of Climate Change; and 4) Communities of the Future.
Key themes that emerged were the continuing need to address sprawl, the role – or lack thereof – of the federal government, and the new and pressing challenges associated with climate change. A keynote address was also given by J.R. DeShazo, Director of the Luskin Center for Innovation at the University of California at Los Angeles, on strategies for achieving sustainable communities throughout California.
Clinic Submits Comments on the Bureau of Ocean Energy Management’s (BOEM) Draft Second Supplemental Environmental Impact Statement (DSSEIS) for the Chukchi Sea Planning Area
December 22, 2014
The Emmett Environmental Law & Policy Clinic submitted comments today on the Bureau of Ocean Energy Management’s (BOEM) Draft Second Supplemental Environmental Impact Statement (DSSEIS) for the Chukchi Sea Planning Area. The Clinic’s comments focus on the DSSEIS’s discussion of the risks associated with a very large oil spill and with the potential use of dispersants to respond to such a spill.
The Clinic identifies several flaws in the DSSEIS analysis that must be corrected to effectively address and minimize risk to the Chukchi Sea’s sensitive marine environment. First, the DSSEIS incorrectly assumes that dispersants can be an effective oil-spill response technique when existing research shows that there is considerable uncertainty about their effectiveness. Second, the DSSEIS contains several omissions in its discussion of the potential impacts of dispersant use on wildlife. Lastly, the DSSEIS’ assumption that a very large oil spill can be stopped within 74 days by the drilling of a relief well is unreasonable because it does not take into account the possible winter conditions that could delay the completion of such a well.
Clinic students Rohemir Ramirez Ballagas, LLM ’15 and Alexander Leone, JD ’16, wrote the comments under the supervision of Clinic Director Wendy Jacobs and Senior Clinical Instructor Shaun Goho.
Clinic Releases Report on Access to Information in Offshore Drilling
December 22, 2014
The Emmett Environmental Law & Policy Clinic released a new report, Offshore Drilling: Coordinating and Improving Access to Information, which 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.
In the report, the Clinic identifies a number of obstacles to public and agency access to the information reported to BSEE under its regulations, and that such unnecessarily restricted public access frustrates meaningful public oversight of safety and environmental impacts. Further, the Clinic found that while BSEE’s regulations require collaboration among agencies, they do not mandate information-sharing. The Clinic made several recommendations, including that BSEE should issue guidance confirming that it will apply a presumption of public access to, and need for, non-confidential information relevant to safety and environmental impacts of offshore drilling; increase the scope of, and accessibility to, material posted on its public website; revise its reporting forms; and create a centralized reporting system to facilitate aggregation of information collected by all of the agencies with jurisdiction in a single and searchable system available to the public and all interested regulators.
Clinic students Daniel Brasil Becker, JD’14 and Maria Parra-Orlandoni, JD’15 contributed to the research, analysis and preparation of this report, under the supervision of Clinic Director Wendy Jacobs and Clinical Instructor Aladdine Joroff.
The Takeaway Interviews Jody Freeman on Climate Change Negotiations
December 2, 2014
The Takeaway hosted Professor Jody Freeman on its morning show, “Confronting Evidence of Climate Change at Home and Abroad.” With COP 20 now underway in Lima, Peru, Professor Freeman offered her take on the negotiations. “The U.S.-China deal is a game changer. It adds tremendous momentum to these talks in Lima. The U.S. and China are the two indispensable nations on this problem.” Freeman also discussed President Obama’s use of his executive authority and the Clean Air Act to address climate change domestically.
Environmental Policy Initiative Releases Paper about Lessons Learned from Constitutional Challenges to States’ Energy Policies
November 19, 2014
The Environmental Policy Initiative released a new paper entitled Minimizing Constitutional Risk: Crafting State Energy Policies that Can Withstand Constitutional Scrutiny. The paper provides policymakers with key lessons from recently filed lawsuits that challenge the constitutionality of state energy policies and suggestions on how states can work within their constitutional limits to achieve energy policy goals. The paper’s Legal Appendix provides overviews of the dormant Commerce Clause doctrine, preemption under the Supremacy Clause, and four federal energy laws that have been the subject of recent preemption challenges.
Commissioner Jeffrey Goltz of the Washington Utilities and Transportation Commission unveiled the new paper at the annual meeting of the National Association of Regulatory Utility Commissioners (NARUC) in San Francisco. The Commissioner moderated a panel that explored states’ policy options to control power supply mix and assure reasonable rates without violating the Constitution.
The paper is available at http://www.statepowerproject.org/guide. At statepowerproject.org, the Environmental Policy Initiative continues to track ongoing litigation in nine states, including appeals at five circuit courts, about the constitutionality of state energy policies.
T.A. Barron, ’82, Gives Traphagen Talk & Meets With Barron Fellows
November 18, 2014
On Tuesday, November 18, author and conservationist T.A. Barron (’82) delivered an inspirational speech to Harvard Law students as part of the HLS Traphagen Distinguished Alumni Speakers Series. Mr. Barron described his journey of becoming a bestselling author, from receiving impersonal rejection letters to turning his Merlin series into a feature film. His advice to students as they decide which career to pursue was to ask themselves two questions: what are you passionate about, and what does the world need?
Afterwards, Mr. Barron met with two of ELP’s Barron Fellows, Samantha Caravello and Cecilia Segal, to hear more about their summer experiences. The Environmental Law Program is incredibly grateful to Mr. Barron for his generous support of these fellowships.
EPI Director Kate Konschnik argues for Goal-Oriented Disclosure Design in Shale Oil and Gas Development
November 17, 2014
EPI Director Kate Konschnik has published a new article, Goal-Oriented Disclosure Design for Shale Oil and Gas Development, in the Natural Resources Journal. In her article, Kate argues that disclosure laws are more effective when they are viewed as a means to achieving worthwhile policy goals. The key is to identify target audiences – those who can achieve policy goals directly as well as “intermediate audiences” who can apply pressure. By thinking through when target audiences need information, how they use information, and where they get their information, disclosure law designers can draft disclosure laws that will hit their mark.
Kate’s article focuses on disclosure laws targeting chemicals used to develop shale oil and gas. All too often, these laws are not written to achieve their stated purposes. For instance, policy makers want to provide medical personnel and first responders with complete information about the chemicals present at a well site, in case of an emergency. However, most states limit disclosure to hydraulic fracturing chemicals, excluding chemicals used for drilling and other purposes. Likewise, most states do not require disclosure until after the chemicals have been used on site. And many state laws allow companies to withhold chemical information if the company claims it is proprietary. Some states require proprietary information to be shared with medical personnel and first responders, but they do not describe the mechanism for sharing and place the burden on the first responder to track down the proprietary information. Following a Monroe County, Ohio well fire and release of fracturing fluid chemicals into an Ohio River tributary in July 2014, it took Halliburton five days to provide a complete list of the chemicals in the fluid to federal and state responders. Kate makes suggestions for curing these shortcomings.
This work builds on Kate’s work to push for improvements to FracFocus, the oil and gas industry’s online chemical disclosure registry. Since issuing her FracFocus white paper in April 2013, Kate has testified before the Secretary of Energy’s Advisory Board and worked with state agencies, the developers of FracFocus and other stakeholders to improve chemical disclosure.
Environmental Policy Initiative Submits Comments on EPA Clean Power Plan
November 6, 2014
On November 5, 2014, the HLS Environmental Policy Initiative submitted comments on EPA’s Clean Power Plan, which proposes to regulate greenhouse gas emissions from existing stationary sources for the first time in U.S. history. The comments are in the form of an Energy Efficiency Evaluation Tool, which states and stakeholders can use to determine whether energy efficiency (EE) programs can be included in their emission reduction plans. The Evaluation Tool contains a series of questions that guide the evaluation of EE programs, organized around four attributes of Clean Air Act compliant emission reduction credits: quantifiable, enforceable, permanent, and non-duplicative. The Tool also integrates past EPA guidance and summarizes EE programs that have received past EPA approval to provide additional clarity to stakeholders. Finally, the Tool provides concrete suggestions for EPA to consider prior to finalizing the Clean Power Plan.
In its cover letter, the Environmental Policy Initiative expresses support for EPA’s plan, and in particular praises the flexibility offered to individual states in allowing them to achieve compliance through end-use energy efficiency programs.