Policy Initiative Publishes Paper on State Plan Enforcement Under EPA’s GHG Power Plant Rule

The Policy Initiative released a paper entitled Power Over Pollution: Exploring State Plan Enforcement Under EPA’s GHG Power Plant Rule.  Last month, EPA proposed CO2 emission guidelines for existing power plants.  Once EPA’s proposal is finalized next year, States will submit plans to EPA describing how they will meet 2030 carbon intensity targets.  The Policy Initiative’s paper describes how EPA and States generally enforce State plans submitted under the Clean Air Act, and how EPA proposes to treat enforcement issues under its rule for power plants.  The paper also surveys laws in four States to assess whether they provide regulators with sufficient authority to meet EPA’s proposed requirements.

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 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 Policy Initiative’s ongoing green infrastructure pilot partnership with EPA, and was authored by Clinic Director Wendy B. Jacobs and Policy Initiative Director Kate Konschnik.  The following students also contributed to the report:  Dakotah Burns, JD’15; Tsukihiko 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

In light of EPA’s announcement today about Obama’s plan to regulate carbon emissions from coal-fired power plants, we wanted to highlight some of the work that HLS faculty have been doing around the issue. Professor Jody Freeman, Director and Founder of ELP, recently 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 about utilizing energy efficiency programs as part of the sec. 111(d) rule for existing power plants. 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.

The Clinic and Policy Initiative Release New Report on Responding to Landowner Complaints from Oil and Gas Activity

On May 14, the Emmett Environmental Law & Policy Clinic and the Environmental Policy Initiative released a new report, Responding to Landowner Complaints of Water Contamination from Oil and Gas Activity: Best Practices.  The report 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.

The report was authored by William Cranch, JD’15; Margaret Holden, JD’14; Shaun Goho, Senior Clinical Instructor; and Kate Konschnik, Policy Director.

Professor Lazarus Helps Fix Error in Supreme Court Opinion

On Tuesday 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 herehere, and here

Harvard Gazette Article Profiles ELP’s Work on Climate Change

On April 25, Harvard Gazette ran a piece interviewing ELP Founder and Director, Prof. Jody Freeman, about the 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 (like Climate and Energy), and the fabulous work being done in the Emmett Environmental Clinic (for example, amicus briefs, policy reports on climate mitigation and adaptation). Read more here.

Policy Initiative Launches StatePowerProject.org

State policies promoting the deployment of renewable energy have played important roles in the rapid growth of wind and solar energy.  But over the past few years, those policies are increasingly being challenged as unconstitutional.  Challenges are wide ranging but most focus on two grounds: preemption by the federal government, or State overreach into interstate commerce.

Harvard Law School’s Environmental Policy Initiative is launching 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 NAELS Conference Was  a Huge Success!

On March 28-29, our 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.

EPI Director Kate Konschnik and EPI Energy Fellow, Ari Peskoe, published a report on utilizing energy efficiency programs to reduce greenhouse gas emissions’ from existing power plants under section 111(d) of the Clean Air Act. Paper can be found here. Politico’s Morning Energy briefing, Energy CollectiveUtility Dive, and Greenwire have all reported on the report.

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 NPRReutersThe Boston Globe, and Bloomberg Sustainability.

Class Supreme Court Visit & Prof. Freeman and Lazarus Weigh In on the Greenhouse Gas Case

The class posing in front of the Supreme Court

On Monday 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 PostBloomberg 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, 2014, 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.

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