Clinic Releases New Edition of Fracking Guide
The Clinic released a newly revised edition of their fracking guide, entitled A Landowner’s Guide to Hydraulic Fracturing: Addressing Environmental and Health Issues in Oil and Gas Leases (Revised Edition, July 2014). This expanded version 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. The guide was prepared and revised by Clinic students, including Joshua Herlands (JD’12), Humu-Annie Seini (LLM’11), Zachary Kearns (JD’14), Sarah Peterson (JD’15), and Albert Teng (JD’15), together with the Clinic’s lawyers Shaun Goho, Wendy Jacobs, and Aladdine Joroff.
The Clinic and Policy Initiative Announce New Report on Regional and Municipal Stormwater Management
The Emmett Environmental Law & Policy Clinic and the Environmental Policy Initiative (EPI) released a new report, Regional and Municipal Stormwater Management: A Comprehensive Approach. This report analyzes options for addressing stormwater pollution at both the regional and municipal level, 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.
This report is part of the Clinic and EPI’s ongoing green infrastructure pilot partnership with EPA, and was authored by Clinic Director Wendy B. Jacobs and EPI Director Kate Konschnik. The following students also contributed to the report: Dakotah Burns, JD’15; Tsuki Hoshijima, JD’15; Carl Lisberger, JD’14; Sean Lyness, JD’15; and Chrystel Marincich, JD’15.
EPA’s Climate Rule for Existing Power Plants Under 111(d) – HLS Faculty Analysis and Research
ELP faculty and staff have been hard at work analyzing EPA’s plan to regulate carbon emission from existing power plants. Professor Jody Freeman, Director and Founder of ELP, wrote a New York Times op-ed “Teaching an Old Law New Tricks” about the legal prospects of using the Clean Air Act to regulate greenhouse gases. Kate Konschnik and Ari Peskoe of the Environmental Policy Initiative published a paper evaluating the potential for states to use energy efficiency to meet the requirements of EPA’s proposed power plant standards. Politico’s Morning Energy briefing, Energy Collective, Utility Dive, and Greenwire reported on this paper, and EPA cited it in their 111(d) proposal. Kate and Ari have also published a paper exploring how states might approach 111(d) compliance, using four states – Arizona, Florida, Illinois, and Pennsylvania – as examples. Lastly, Kate Konschnik guest blogged for Legal Planet discussing EPA’s statutory authority to issue the sec. 111(d) regulations.
2014 Barron Fellows Announced!
The Environmental Policy Program is proud to announce the winners of its summer fellowship program. Natasha Burnett, Samantha Caravello, Brenden Cline, Seth Hoedl, Sean Lyness, Genevieve Parshalle, and Cecilia Segal all received fellowships to work on environmental and energy issues for a variety of non-profits and governmental agencies. As always, ELP thanks its generous donors who make this fellowship a reality. More information about the fellows, their past experience and their work this summer available here.
New Clinic and Policy Initiative Report Suggests Ways States Could Better Respond to Landowner Complaints from Oil and Gas Activity
On May 14, the Emmett Environmental Law & Policy Clinic and the Environmental Policy Initiative (EPI) released a report, Responding to Landowner Complaints of Water Contamination from Oil and Gas Activity: Best Practices. The report recommends policies for states to consider implementing for a more robust, comprehensive response to water quality complaints. If adopted, these practices can help ensure that agencies conduct a thorough investigation of potentially contaminated water sources, that landowners obtain an accurate understanding of the findings, and that the process is open and transparent.
The report was authored by William Cranch, JD’15; Margaret Holden, JD’14; Shaun Goho, Senior Clinical Instructor; and Kate Konschnik, EPI Director.
Professor Lazarus Alerts Supreme Court to Error in Opinion
On April 29, the Supreme Court issued a divided opinion in Environmental Protection Agency v. EME Homer City Generation, L.P. Justice Scalia and Justice Thomas dissented, and the dissent contained a noticeable error. The dissent explained, “This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS.” Though Whitman did involve the claim that the Clean Air Act allowed the EPA to consider costs, it was not the EPA arguing in favor of considering costs, but rather industry. After Prof. Lazarus noticed the mistake, he invoked the Court’s formal rules and procedures and wrote the Court a letter pointing out the mistake. On Wednesday April 30, the Supreme Court had corrected the opinion. Read more here, here, and here.
Harvard Gazette Article Profiles ELP’s Work on Climate Change
On April 25, the Harvard Gazette published an interview with ELP Founder and Director, Prof. Jody Freeman, discussing ways in which ELP scholars and students are engaged in confronting climate change. The interview described the diversity of opportunities available at HLS to study and work on climate change, noting the variety of classes available, and the fabulous work being done in the Emmett Environmental Law & Policy Clinic and the Environmental Policy Initiative. Read more here.
Policy Initiative Launches StatePowerProject.org
State policies promoting renewable energy have driven rapid growth in wind and solar energy. But those policies are being challenged as unconstitutional. Challenges are wide ranging but focus on two grounds: preemption by the federal government and State overreach into interstate commerce.
The Environmental Policy Initiative launched Statepowerproject.org to track these cases. The site includes summaries of litigation, background about key concepts, and the judicial decisions and filed briefs. We offer the site as a clearinghouse and reference for stakeholders, students, and researchers with an interest in these cases.
Environmental Law Society’s Environmental Justice Conference a Huge Success!
On March 28-29, the Harvard Environmental Law Society had the privilege of hosting the 26th annual National Association of Environmental Law Societies (NAELS) annual conference. The conference was entitled “Environmental Justice: Where are We Now?” and celebrated the 20th anniversary of President Clinton’s Executive Order on environmental justice. The conference helped raised awareness about the EJ movement and fostered great discussions on how EJ can move forward on pressing topics, including access to healthy food, clean air, and public transit. The conference included an opening address by Dr. Robert Bullard, the “father of environmental justice,” a keynote address by Former EPA Administrator Lisa Jackson, and an interview with Professor Gerald Torres, architect of the Executive Order, as well as numerous panels filled with insightful and inspirational community activists. The conference drew practitioners, students, professors and activists from around the country, and we are so proud of our students for all their hard work organizing the conference.
Round-up of Recent Exciting Events
The Environmental Law Program has had a busy spring semester! Professor Freeman has a new paper “Old Statutes, New Problems” with Prof. David P. Spence coming out in the Pennsylvania Law Review. The paper argues that in the absence of Congressional action and updating, agencies can and should adopt old statutes to fit new problems. She recently gave a talk about the paper at the Harvard Kennedy School of Government, and you can listen to the talk here or here.
Professor Lazarus is also on the move, as he recently gave a keynote address at Florida State University College of Law’s conference entitled “Environmental Law Without Congress.” Professor Lazarus also has a new ELI article out available here.
Clinic Amicus Brief Referenced During Supreme Court Oral Argument
During oral argument in UARG v. EPA, the greenhouse gas permitting case before the U.S. Supreme Court, Solicitor General Don Verrilli, arguing on behalf of EPA, cited the Emmett Environmental Law and Policy Clinic’s amicus brief. The clinic’s brief was filed on behalf of Calpine Corp., a Fortune 500 utility company, and described and defended the current greenhouse gas permitting regime. In response to a question about how the Best Available Control Technology requirement functions for greenhouse gases, General Verrilli explained, “Well, it’s an evolving process, Your Honor, and there are now 140 or so permits that have been issued applying BACT to greenhouse gas emissions. There is some very helpful discussion of this kind of specifics in two places: The State Respondents’ brief, pages 35 to 39, and the Calpine amicus brief.” The brief has also received significant press coverage from outlets such as NPR, Reuters, The Boston Globe, and Bloomberg Sustainability.
Class Supreme Court Visit & Prof. Freeman and Lazarus Weigh In on the Greenhouse Gas Case
On February 25, Professor Lazarus’ advanced environmental law class traveled down to Washington, D.C. to listen to oral arguments in UARG v. EPA. Read more about the visit here. Additionally, both Professor Freeman and Lazarus have been actively commentating on and discussing the case. Collectively, they have been interviewed by Washington Post, Bloomberg Sustainability, and NPR’s The Takeaway. (Professor Freeman also commented on the case for SCOTUSblog.)
Clinic Files Amicus Briefs in the U.S. Supreme Court and Massachusetts Supreme Judicial Court
On January 28, the Clinic filed an amicus brief in the U.S. Supreme Court case Utility Air Regulatory Group v. U.S. Environmental Protection Agency. This case involves challenges to EPA’s regulation of greenhouse gas emissions from stationary sources under the Prevention of Significant Deterioration program of the Clean Air Act. Clinic student William Cranch (JD ’15) wrote the brief under the supervision of Clinic Director Wendy Jacobs and Senior Clinical Instructor Shaun Goho.
The Clinic also filed two amicus briefs on February 14, 2014 in related cases before the Massachusetts Supreme Judicial Court involving a proposed power plant in Brockton, Massachusetts. Clinical students Alexandria Shasteen (JD ’14), Jean Tanis (JD ’15), and Zachary Kearns (JD ’14) worked with Clinic Director Wendy Jacobs and Clinical Instructor Aladdine Joroff on these briefs.