CleanLaw

Hannah Perls, EELP Senior Staff Attorney, and Deanna Moran, vice president of healthy and resilient communities at the Conservation Law Foundation in Boston, walk through some of the surprising ways that law and policy drive adaptation decisions in Massachusetts and beyond, including state and local building codes, design standards and risk disclosures, how to make our utilities more resilient without forcing ratepayers to bear the costs, and permitting. We also dig into current advocacy efforts for a wicked resilient New England. Show notes: Conservation Law Foundation report on The Massachusetts State Building Code & Climate Change https://www.clf.org/wp-content/uploads/2019/03/CLF_ClimateCodeReport_2019.pdf Environmental Law Institute report on State Protection of Nonfederal Waters: Turbidity Continues https://www.eli.org/sites/default/files/files-pdf/52.10679.pdf An Act Promoting Climate Safe Buildings https://malegislature.gov/Bills/193/SD18 An Act Relative to Electric Utility Climate Resilience and Microgrids https://malegislature.gov/Bills/193/SD786 Follow Deanna on X/Twitter demoran18 Transcript: https://eelp.law.harvard.edu/wp-content/uploads/2024/07/CleanLaw_EP93-1.pdf

The Endangered Species Act, which turned 50 years old on December 28, 2023, has been described as one of the most potent environmental law statutes ever enacted. Harvard Law Professor Richard Lazarus and Andy Mergen, director of the Harvard Law Emmett Environmental Law and Policy Clinic, discuss the initial bipartisan support for the act, the Supreme Court cases that shaped its implementation, and the success of the law in protecting numerous species. They also talk about how the Endangered Species Act could be improved and the risks that it may face in the future. Transcript (PDF): https://eelp.law.harvard.edu/wp-content/uploads/2024/07/CleanLaw-EP92.pdf

In this episode Harvard Law professor and EELP’s Founding Director Jody Freeman, speaks with Bjorn Otto Sverdrup, Chair of the Oil and Gas Climate Initiative’s Oil and Gas Executive Committee, Riley Duren, CEO and Founder of Carbon Mapper, Peter Zalzal Distinguished Counsel and Associate Vice President of Clean Air Strategies at Environmental Defense Fund, and EELP’s Executive Director, Carrie Jenks. They discuss international and domestic efforts to reduce methane emissions, the Global Methane Pledge from COP 26, the Oil and Gas Decarbonization Charter from COP 28, the Biden administration’s recently released final methane rule for the oil and natural gas sector, the technology innovation that is making it increasingly possible to detect methane leaks, and the climate benefits of focusing on methane. Transcript available here https://eelp.law.harvard.edu/wp-content/uploads/2024/07/CleanLaw-91-transcript.pdf

Ari Peskoe, the Director of the Electricity Law Initiative at Harvard Law School, joins Staff Attorney Hannah Dobie to dive into his latest insights on power sector governance. They dissect how the Federal Energy Regulatory Commission (FERC) influences regional decision-making, often compromising the independence of Regional Transmission Organizations (RTOs). The discussion also touches on the urgent need for reform to boost transparency and representation in RTOs, unlocking the industry's innovative potential and addressing long-standing monopolistic control issues.

Harvard Law Professor and EELP’s Founding Director Jody Freeman, speaks with Kevin Poloncarz, a partner at the law firm Covington & Burling and Jack Ewing, a New York Times business reporter who writes about the auto industry and electric vehicles. Jody, Kevin, and Jack discuss the three cases currently before the D.C. Circuit about how agencies set vehicle standards to reduce greenhouse gas emissions and improve fuel efficiency. They also discuss the United Auto Workers strike, the economics and supply chain considerations for manufacturing electric vehicles, and how each may affect the Biden administration’s climate policy for the transportation sector. Transcript here: https://eelp.law.harvard.edu/wp-content/uploads/2024/08/CleanLaw-89-transcript.pdf

Harvard Law Professor and EELP’s founding director Jody Freeman, speaks with Andy Mergen, director of Harvard Law’s Emmett Environmental Law and Policy Clinic, about a case the US Supreme Court will hear this fall, Loper Bright Enterprises v. Raimondo, in which petitioners have asked the Court to overrule the Chevron doctrine — a legal doctrine that governs when a court should defer to an agency’s interpretation of a law. The case arises under the Magnuson–Stevens Fishery Conservation and Management Act, which authorizes requiring commercial fishing vessels to carry onboard observers, but the statute doesn’t specify that the fishermen should pay for those observers. Jody and Andy talk about how the Supreme Court might cabin or overrule the Chevron doctrine, and what the case might mean for other environmental regulations and federal regulation more broadly. Transcript: https://eelp.law.harvard.edu/wp-content/uploads/2024/08/CleanLaw-88-transcript-8-23-2023.pdf Quotes: "The Chevron case involved a reading by the Environmental Protection Agency in the Reagan administration that was actually helpful to business, and allowed them some flexibility in updating facilities without having to get new permits under the Clean Air Act. Those were the facts of Chevron. It was viewed as a flexibility-enhancing interpretation, a deregulatory, business-friendly interpretation." –Jody Freeman [6:00] "I think that the folks who are advancing an anti-administrative state agenda are just worried that Congress has created a pretty robust environmental statutory regime, a pretty robust human health and safety regime, and the agencies are proceeding in good faith to implement Congress's goals there. I think that at this point in the game, folks who are anti-regulatory would rather detooth the professional staff in those agencies rather than abide by what really does appear to be a neutral doctrine on its face." –Andy Mergen [29:20] "This is a profoundly important tool for the lower courts, to get their handle on issues that they’re confronting every day from agencies. It’s a really, really important framework for promoting stability and rule of law values. I think we would lose a lot if we were overturning Chevron."  –Andy Mergen [48:10] "Even if you overturn Chevron, you can't avoid the fundamental problem, which is that Congress is giving agencies a job to do, and they need to have some flexibility interpreting their mandates" –Jody Freeman [53:55]

EELP Senior Staff Attorney Hannah Perls talks with Susan Crawford, the John A. Riley clinical professor at Harvard Law School, and Michelle Mapp, an Equal Justice Works law fellow at the ACLU of South Carolina and former CEO of the South Carolina Community Loan Fund, about Susan's most recent book, Charleston: Race, Water, and the Coming Storm. Read the transcript: https://eelp.law.harvard.edu/wp-content/uploads/2024/09/CleanLaw-87.pdf Quotes: “Charleston is everything about America sort of distilled: enormous growth, enormous focus on profit, a deep rootedness in our history of racism and now facing a lot of pressures from both the water and from development.” —Susan Crawford (9:31) “... [W]e have just refused to even begin to have these conversations as a community, as a state, or as a country. But they're conversations that we must have because whether we choose to put our head in the sand or not, the water is coming, the hurricanes are coming, these weather events are coming as we are already seeing in our country.” —Michelle Mapp (36:20) “We have to elect people who are capable of looking beyond their short-term plans and their short-term success in office to think about the long-term survival of this country.” —Susan Crawford (41:09)

Harvard Law School Professor and EELP's Founding Director Jody Freeman, who is also an independent director of ConocoPhillips, speaks with Harvard Law School Professor Richard Lazarus and University of Wisconsin-Madison Professor of Law Steph Tai about the US Supreme Court’s recent decision in Sackett v. EPA. They discuss how the Court’s reliance on a dictionary definition of waters will drastically limit Clean Water Act protections: severely shrinking what qualifies as covered wetlands and streams, and as a result, enfeebling the federal government’s ability to protect the larger water bodies the act still clearly covers. With a deep dive into the history of the Clean Water Act, the Supreme Court’s prior decisions, and the science of watersheds, they put into context how the Sackett decision flies in the face of what Congress intended when it passed this landmark legislation. Transcript: https://eelp.law.harvard.edu/wp-content/uploads/2024/09/CleanLaw-86-final.pdf Quotes: “[I]f the Court uses a continuous surface water connection test, which is what they're moving towards, to traditional navigable waters required for wetlands, more than 50% of wetlands in some watersheds would no longer be protected by the Clean Water Act. With respect to streams: Ephemeral and intermittent streams would not be jurisdictional waters and thus more than 90% of stream length, in some watersheds, would no longer be protected by the Clean Water Act.” —Steph Tai [6:50] “… [W]e don't have to guess what the purpose of the Clean Water Act is, it's the very first section of the act, section 101, it says its purpose is to preserve the biological, physical, and chemical integrity of the nation's waters. That is the purpose of the statute. And unfortunately, what the court is done here, it's made it impossible to do that both to those waters that are now no longer covered themselves, which are important, and because their connection to the waters the court says are covered. So all sets of those waters will no longer be effectively protected by the statute. And when Congress did this in 1972, they did it deliberately. They deliberately decided we needed a national law, a comprehensive law. They deliberately defined the term navigable waters to mean waters of the United States as a broad term, and the accompanying legislative history said, we're doing that deliberately. We want to tap into the full scope of Congress's power under the Commerce Clause. So, they were intentionally not making this depend on traditional notions of navigability. And that's been the sort of the settled law. And now the court has turned back the clock.” —Richard Lazarus [13:45] “I felt a sense of disappointment there wasn't a dissent that really took the majority to task and chimed in about the danger of the Thomas-Gorsuch approach and view of the Commerce Clause... [L]urking here in the Thomas-Gorsuch concurrence is a very radical view of the Commerce Clause and what Congress can do and what it means for environmental law more generally.”  —Jody Freeman [42:50] “There is a real tone and tenor and attitude of real disdain for the enterprise of the agencies in these cases. For the job the government has been given by Congress in these statutes, a sense of the government is the enemy. The government imposes and impinges on liberty. There's a line in the Alito opinion, Richard, that says the Clean Water Act is a ‘potent weapon’ and it has ‘crushing’ consequences. Not, ‘there's a mission.’ Congress gave the agency a mission to protect the waters of the United States.” —Jody Freeman [55:08]

EELP Senior Staff Attorney Hanna Perls, Executive Director Carrie Jenks, and Electricity Law Initiative Director Ari Peskoe break down recent changes to federal permitting passed as part of the Fiscal Responsibility Act, aka the debt ceiling bill, which President Biden signed on June 3rd. Transcript: https://eelp.law.harvard.edu/wp-content/uploads/2024/09/CleanLaw-85.pdf Mentioned link: https://www.epw.senate.gov/public/index.cfm/2023/5/federal-actions-to-improve-project-reviews-for-a-cleaner-and-stronger-economy

Executive Director Carrie Jenks and EELP’s Electricity Law Initiative Director Ari Peskoe discuss the Supreme Court’s recent National Pork Producers Council v. Ross decision. Ari explains how this case about a California law regulating sales of pork products will help insulate state clean energy laws from certain types of legal challenges. Transcript: https://eelp.law.harvard.edu/wp-content/uploads/2024/08/CleanLaw-84.pdf Mentioned link: https://statepowerproject.org/