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Climate Change Case is Heard in Court of Appeals

By: Olivia Klein

Source: Robin Loznak

A group of young people are fighting to sue the U.S. government in an ongoing case about climate change, which has recently returned to the Ninth Circuit Court of Appeals.

Juliana v. United States was filed in 2015 by 21 children and young adults who argue that their basic constitutional rights to life, liberty, and the pursuit of happiness are being violated by the government’s inaction in the face of climate change and subsidizing of fossil fuels. Their direct constitutional argument is that they have a right to a stable climate system. In addition, they claim that the public trust doctrine, which gives the government the responsibility to hold resources such as land, water, and fisheries in trust for its citizens, has been violated. The plaintiffs of Juliana argue that as a trustee of the atmosphere, the government has failed to take measures protecting it, such as limiting fossil fuel use and cutting greenhouse gas emissions, despite having explicit knowledge that combustion of fossil fuels adds carbon dioxide to the atmosphere, harmfully accelerating climate change.

Numerous people have signed on to plaintiff-side amicus briefs filed by international lawyers, members of Congress, and leading public health experts alike. Harvard Law School’s Emmett Environmental Law and Policy Clinic is one such supporter of the case; the clinic filed its own amicus brief in March, authored by Clinic Director Wendy Jacobs, Deputy Director Shaun Goho, and a clinical student, Grant Glovin, ’20.  At the Environmental Law and Policy Clinic, Jacobs and Goho supervise students working on litigation and other projects that address a variety of environmental issues, including climate change, renewable energy, and water pollution. In the amicus brief, the authors from the clinic write, “This generation is suffering – and will continue to suffer as they age – harms different from those of prior generations.”

In their argument, Juliana plaintiffs cite public health consequences caused by climate change, such as asthma and allergies from exposure to wildfire and smoke, worsening infectious disease exposures, and food and water insecurity. “There’s a really robust body of scientific literature that supports each of these different kinds of health impacts that are already being observed and are projected to get worse and worse,” Goho told Inside Climate News.

In addition to these immediate bodily harms, experts also point to the future threats facing the next generation, such as the health risks and stress that go along with hurricanes, wildfires, and rising sea levels threatening their homes. “The Juliana generation is going to feel and suffer from those impacts in a way that’s really different and more extreme than what any previous generation has felt,” the amicus brief states.

The federal government has continuously fought for the case to be dismissed, arguing that no single judge can require the government to stop global climate change. Government lawyers point towards the young people’s argument as a “generalized” grievance and suggest that their injuries do not directly correspond to government actions.

On June 4, 2019, the case returned to the 9th U.S. Circuit Court of Appeals, where three judges held an hour-long hearing to listen to arguments from both sides. Judges raised questions for both parties, suggesting that the plaintiffs’ approach was too broad while the government’s arguments to shut down the case were too narrow.

The decision the Ninth Circuit Court makes will determine whether the Juliana case will be allowed to proceed to trial in district court.

Ex-EPA Leaders: 1st Circ. Should Revive ‘Purge’ Suit

Via Law360 

By: Andrew Kragie

Source: Pexels

Five former senior U.S. Environmental Protection Agency officials have backed a First Circuit appeal by scientists aiming to revive litigation against the EPA over what they call its 2017 “purge” of current EPA grant recipients from the agency’s advisory committees.

The former officials, who include an Obama-era acting administrator and a Reagan-era assistant administrator, argued in an amicus brief filed Thursday that the ban is preventing the agency from making decisions based on the best science available, as required by law.

The EPA under the Trump administration said when it announced the policy that it was needed to prevent conflicts of interest and ensure independence. But the agency veterans said in their brief that the true effect is to undermine a carefully calibrated diversity of viewpoints and give unrestrained influence to industry.

The order “tries to solve a problem that does not exist,” the former officials said, and “prevents some of the most qualified scientists from serving on EPA science advisory committees.” These boards do not award or control the grants, and their members are not compensated beyond travel expenses.

The ex-policymakers, joined by a former head of the U.S. Occupational Safety and Health Administration, argued that researchers who receive EPA grants are not biased by the support. Rather, they said the recipients may well be the best candidates.

The agency’s highly competitive grants often go to leading researchers at the cutting edge of environmental science and its real-world applications, the former officials said. EPA-funded projects often yield publications that are cited widely in their fields, suggesting their originality and widespread impact.

The governmental veterans also asked why the agency could ban recipients of EPA grants while welcoming and promoting researchers who get their funding from industry groups, regulated companies or other sources that could theoretically pose conflicts of interest.

“The practical effect of the directive has been to make the science advisory committees less independent by increasing the representation of industry scientists,” they said in their amicus brief.

The six former officials are Bob Perciasepe, an acting administrator and deputy administrator from 2009 through 2014; Bernard Goldstein, an assistant EPA administrator under President Reagan; Lynn R. Goldman, an assistant EPA administrator from 1993 through 1998; Terry Yosie, the director of the EPA’s Science Advisory Board from 1981 through 1988; and David Michaels, who led OSHA from 2009 to 2017.

They wrote to support an appeal by the Union of Concerned Scientists and Elizabeth Anne Sheppard, a University of Washington scientist who left a project partly funded by the EPA to keep her seat on the agency’s Clean Air Scientific Advisory Committee. The plaintiffs were backed at the trial court by 10 state attorneys general.

The appeal comes after the lawsuit was dismissed in March by a Massachusetts federal judge who found that the EPA adequately explained the directive. U.S. District Judge F. Dennis Saylor IV also decided that the ban was not governed by other federal regulations on conflicts of interest.

The scientists argued in their appeal earlier this month that the ban failed “the most basic requirement” of the Administrative Procedure Act and that the lower court incorrectly decided the EPA’s directive was not reviewable.

Two similar lawsuits were dismissed in New York and Washington, D.C., federal courts.

The policy was first announced on Halloween 2017 by then-EPA Administrator Scott Pruitt.

Pruitt resigned his post in July 2018 after a series of scandals and more than a dozen investigations into his actions. He was succeeded by his deputy, former coal-industry lobbyist Andrew Wheeler.

Wheeler met with leaders of the Union for Concerned Scientists but kept Pruitt’s directive in place, according to Genna Reed, the nonprofit’s lead science and policy analyst.

Reed told Law360 that the former officials “understand both the value of the best available science (as well as how having) real, qualified experts serving on these advisory committees serves as a check and a vital accountability mechanism for our science agencies.”

The Harvard Law School attorney representing the ex-policymakers, Shaun Goho, emphasized that there’s a bipartisan outcry over science at the EPA, and across the Trump administration. Academic scientists have gotten more involved in the policy realm during the current administration, he said.

“They are speaking up for science and fact-based decision making,” Goho said. “I would hope that that is not a partisan issue.”

Counsel for the EPA declined to comment Monday.

The former officials are represented by Shaun A. Goho and Lynne I. Dzubow of Harvard Law School’s Emmett Environmental Law & Policy Clinic.

The scientists are represented by Justin Florence, Benjamin L. Berwick and Jamila G. Benkato of The Protect Democracy Project Inc., and Lindsay C. Harrison, Samuel C. Birnbaum, Zachary C. Schauf and Julian Ginos of Jenner & Block LLP.

The EPA is represented by Jeffrey E. Sandberg of U.S. Department of Justice‘s Civil Division.

The appeal is Union of Concerned Scientists et al. v. U.S. Environmental Protection Agency et al., case number 19-1383 in the U.S. Court of Appeals for the First Circuit.

–Additional reporting by Juan Carlos Rodriguez, Craig Clough and RJ Vogt. Editing by Peter Rozovsky.

Correction: An earlier story mischaracterized a response from counsel for the former officials. The error has been corrected. 

Update: This story has been updated with comment from an attorney for the former officials.

All in a Day’s Work

By: Alexis Farmer

The numerous clinics at Harvard Law School (HLS) are frequently successful in their pursuit of advancing justice. We often read of victories in court cases, positive reactions to dynamic presentations, and the formation of powerhouse partnerships, but how do the clinics get there? On any given day, HLS students, clinical instructors and clinical faculty are actively working on issues – preparing a brief, arguing a motion in court, giving a presentation to community leaders or clinical professionals, or collaborating with community partners on launching a policy initiative. On one particular day in early May, three clinics were in three different courts while others were fortifying partnerships on each of the coasts. The Office of Clinical Programs (OCP) got an inside scoop on what a day in a few of the clinics might look like, and they were just as busy as we suspected.

Tuesday, May 7th

Credit: Emmanuel Huybrechts
Source: Flickr

9:00am The Massachusetts Supreme Judicial Court (SJC) heard oral argument in Boston Globe Media Partners, LLC v. Chief Justice of the Trial Court, a case about whether the public has a right of access to records from show-cause hearings in which the clerk magistrate, who presides over the hearing, finds probable cause, but decides not to issue a criminal complaint. The Boston Globe sued the heads of the trial courts last fall, arguing that public access to the records allows for transparency and accountability and is useful in determining whether there is an uneven application of justice in this part of the court system. The action came after The Globe reported that Massachusetts was the only state to have these proceedings out of the public eye and keep many of the documents confidential.

In amicus briefs, the ACLU of Massachusetts, Greater Boston Legal Services (GBLS) and Harvard Legal Aid Bureau (HLAB) argued that the hearings provide privacy for subjects of criminal complaints prior to arraignment. The amici also expressed concern that opening records where no criminal complaint is issued could harm individuals’ ability to obtain housing or jobs. HLAB’s brief was written on behalf of Harvard Defenders, the only legal services organization in the state dedicated to pro bono representation of indigent defendants in criminal show cause hearings, and City Life/Vida Urbana, a grassroots community organization dedicated to fighting for racial, economic, social justice and gender equality. Executive Director of Harvard Defenders Dara Jackson-Garrett, who co-authored the brief, told Massachusetts Lawyers Weekly, “Those who take out applications for criminal complaints often do not want to see the accused go to jail. Instead, they may just want to have the person apologize or get treatment for substance abuse.” A decision in the case is expected sometime late summer/early fall.

9:30am The Harvard Immigration and Refugee Clinic (HIRC) at GBLS co-managing directors and HLS lecturers on law Nancy Kelly and John Willshire Carrera, HIRC assistant director and clinical professor Sabi Ardalan, and HIRC teaching fellow Zack Albun attended oral arguments in De Pena-Paniagua v. Barr, currently pending at the United States Court of Appeals for the First Circuit. The court held the hearing at the John Joseph Moakley United States Courthouse in Boston. Ms. De Pena-Paniagua is challenging a Board of Immigration Appeals’ decision that denied her asylum application by construing Matter of A-B-, a 2018 decision by Attorney General Jeff Sessions to categorically foreclose asylum to applicants who argue they have a well-founded fear of persecution in the form of domestic violence perpetrated on account of their membership in a “particular social group.” Along with co-counsel at Akin Gump Strauss Hauer & Feld and HIRC director Prof. Deborah Anker, the HIRC attorneys submitted an amicus brief arguing Ms. De Pena-Paniagua qualified for asylum as a victim of persecution on account of her membership in a particular social group defined by female gender. HIRC alumnus Eunice Lee (Albert M. Sacks Clinical Teaching & Advocacy Fellow 2009–11) appeared on behalf of fellow amicus the Center for Gender & Refugee Studies, arguing that Matter of A-B- itself conflicts with the applicable federal statutes and international treaties and should be overturned.

The three-judge panel expressed significant interest in the position advanced in HIRC’s briefing, asking attorneys for both Ms. De Pena-Paniagua and the Department of Justice several questions about her eligibility for relief on the basis advocated. The First Circuit has yet to issue an opinion squarely addressing the legal sufficiency of defining a particular social group by gender.

10:00am Clinical Professor of Law Dehlia Umunna of the Criminal Justice Institute (CJI) and CJI student Jillian Tancil J.D. ’19 spent the morning at Roxbury District Court representing a woman that allegedly violated a protection order. The case was scheduled for a jury trial, but was resolved with pre-trial probation.

10:30am HIRC Clinical Instructor Cindy Zapata spoke on a panel about family detention at the AALS Clinical Conference in San Francisco, CA. The panel, entitled “Learning in Baby Jail: Lessons from Law Student Engagement in Immigration Detention Centers,” was a forum for reflection and learning best practices for preparing students to engage in work within family detention centers. The other panelists included Lindsay Harris, University of the District of Columbia, David A. Clarke School of Law; Erica B. Schommer, St. Mary’s University School of Law; Sara Sherman-Stokes, Boston University School of Law.

11:20am The Emmett Environmental Law and Policy Clinic (EL&PC) submitted comments on behalf of a group of leading scientists on the Environmental Protection Agency’s (EPA) proposed Integrated Risk Information System (IRIS) Assessment Plan for methylmercury. Methylmercury is a common pollutant of air and water and highly toxic. The EL&PC’s comments provided recommendations, guidance, and support for the EPA’s reassessments and proposed studies.

Source: iStock

1:15pm The Center for Health Law and Policy Innovation’s (CHLPI) Health Law & Policy Clinic held a strategic planning call with the Transgender Law Center, as part of an initiative against the rollback of anti-discrimination protections for transgender and gender non-conforming people. The partnership, formalized in the summer of 2018, has led to conversations among legal experts about how to address and challenge reinterpretations of the Affordable Care Act and other civil rights protections. On May 24th, the Trump Administration released proposed changes to gender identity protections in health programs and activities. You can find CHLPI’s on-going analysis of the law here.

2:30pm The Legal Services Center’s Safety Net Project (LSC) and HLAB are representing a client as she appeals the Social Security Administration’s (“SSA”) decision to deny her disability benefits – the first joint representation between the programs. Despite extensive evidence of her inability to continue working due to symptoms of PTSD, anxiety, and depression stemming from abuse both in childhood and during her marriage, the client’s claims have been denied at each stage of the appeals process and are now before the United States District Court for the District of Massachusetts. On May 7th, the LSC-HLAB team filed the client’s response memorandum and asked that the case be set for oral argument. The arguments center around the Administrative Law Judge’s (ALJ) decision, without explanation, to give lesser weight to important evidence from the doctors treating the client, his mischaracterization of the record, various conclusory determinations that render judicial review impossible, and a series of findings that should have been entrusted to experts. HLAB/LSC clinical instructors Stephanie Goldenhersh and Julie McCormack and students Jeremy Ravinsky, JD ’20 and Bryan Sohn, JD ’20 are working on the case. The team is looking forward to their day in court in the fall, when Jeremy and Bryan will present the client’s argument before Judge Casper.

The John Joseph Moakley US Courthouse in Boston, MA.  Source: iStock

All day Sarah Downer and Katie Garfield, from the Center for Health Law and Policy Innovation, attended the Root Cause Coalition’s Annual Hill Day in Washington, DC. They used the event as an opportunity to educate legislators from both parties about the implications of laws like the Anti-Kickback Statute – a criminal statute that prohibits transactions to induce or reward services or items reimbursed by federal health care programs. Downer and Garfield were also invited to meet with staff from several legislative offices to discuss pathways to integrating critical food and nutrition services into the Medicaid and Medicare programs. Securing coverage of these new benefits within our public insurance programs would expand access to life-saving nutrition for vulnerable individuals living with chronic illness.

From Student to Lawyer: My Time in the Environmental Law & Policy Clinic

By: Heather Romero, J.D. ’19

Heather Romero ’19

Looking back at the many opportunities afforded to me as a student at Harvard Law School, the one that was undeniably the most rewarding and impactful to my understanding of how to practice law was participating in the Emmett Environmental Law and Policy Clinic. Coming to law school, I knew that I was interested in environmental law but did not have a strong idea of what my area of focus could be. The Clinic gave me the space to explore different areas of environmental law and develop a set of skills that I can apply to the practice of law in any setting.

I was nervous when I first enrolled in the Clinic. I did not have an academic or professional background in environmental science and in many ways felt like an imposter among my classmates who had dedicated years of study and work to environmental issues. However, my apprehension was unnecessary. The faculty in the Clinic were, and continue to be, incredibly supportive and worked with me to leverage the skill-set I brought with me and build the skills I needed not only to be an effective environmental lawyer, but a strong advocate for my clients in general.

During my first semester in the clinic, I had the opportunity to work on an amicus brief written on behalf of farmers injured by the pesticide dicamba, which was eventually filed in the Ninth Circuit. Though working on the brief taught me much about legal writing, what was most impactful to me was being able to use my legal education to represent the interests of people who suffered real harm. I was also able to explore the ways just one pesticide can have long-lasting, wide-ranging effects. My research on this brief was my first exposure to the effects of modern agricultural practices on wildlife. Though a minor point in the brief, that research motivated me to explore the issue more in depth through two other course papers outside the clinic.

Additionally, one of the experiences in the Clinic I have found most valuable is the opportunity to work on interdisciplinary teams. After my first semester in the Clinic, I enrolled in Professor Jacobs’ Climate Solution Living Lab. The Lab consists of several teams comprised of diverse sets of students: my team included six students from five different Harvard graduate schools and MIT. My team’s assignment was to develop a project to mitigate climate change in the agriculture sector via a behavior change strategy. The Lab was the most challenging class I took at HLS. However, it also taught me the most about how a lawyer can add value beyond just being an advisor on the law—lawyers can offer critical insight on strategy, help manage disparate groups of experts, and ground a project in a way that specifically focuses on the client. My team was able to develop a project that would transition conventional farmland to alley cropping, a practice that can sequester carbon from the atmosphere while providing concrete financial benefits and increased climate resiliency to participating farmers.

Group photo of Heather's Living Lab Team

Group photo of Heather’s Living Lab Team

My experience in the Lab brought me back to the Clinic for both semesters of my 3L year. For my last semester, I am again participating in an interdisciplinary team in which I am the only law student. My team is advising a group of Florida municipalities on formalizing a partnership to develop climate change adaptation strategies. This experience has allowed me to practice the skills I developed in the Lab and build on them even more. I’ve also worked much more closely with our clients than in previous projects, giving me the opportunity to gain experience in working directly with clients. I even will be able to travel to attend our clients’ final stakeholder meeting  of the semester and share our research and advice in person.

Participating in the Environmental Law Clinic has given me my most valuable experiences in law school. No other class has taught me as much about how to be a lawyer in the real world. I feel confident that I am prepared to start my legal career because of the skills I learned in the Clinic and am excited to continue working on issues of climate change mitigation and adaptation.

Clinic Submits Comments on EPA’s Proposed IRIS Assessment Plan for Methylmercury

Via the Emmett Environmental Law and Policy Clinic

The Clinic submitted comments  [earlier this month] on behalf of a group of leading scientists on the Environmental Protection Agency’s (EPA) proposed Integrated Risk Information System (IRIS) Assessment Plan for methylmercury.

The Clinic submitted the comments on behalf of Philippe Grandjean, Elsie M. Sunderland, David C. Bellinger, Joel D. Blum, Esben Budtz-Jørgensen, Laurie H.M. Chan, Celia Y. Chen, Charles T. Driscoll. Jr., David C. Evers, Kathy Fallon Lambert, Irva Hertz-Picciotto, Margaret Karagas, Sally Ann Lederman, Gina Muckle, Frederica Perera, and Ellen K. Silbergeld.  Students Nanding Chen and Veronica Wang wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho as well as Professors Grandjean and Sunderland.

The IRIS Program allows staff in EPA’s Office of Research and Development to assess the toxicity of chemicals independently of any specific regulatory program.  The results of IRIS Assessments then serve as a key source of toxicity information for EPA as well as state and local health agencies and other federal agencies.  At the conclusion of an assessment, EPA may establish a Reference Dose (RfD)—an estimate of the “daily oral exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime.”

Methylmercury is a highly toxic and bioaccumulative contaminant.  People are exposed to methylmercury primarily through consuming seafood and freshwater fish.  EPA last completed an IRIS Assessment for methylmercury in 2001.

Our comments:

  • Commend EPA for deciding to reassess the methylmercury RfD. We agree with EPA that a reassessment of the developmental neurotoxicity reference dose is “justified by recent epidemiological studies that analyzed effects at lower methylmercury exposure levels than those in studies used to derive the existing RfD.”
  • Urge EPA to acknowledge the imprecisions in exposure measurements that have deflated the RfD level, and account for such biomarker imprecisions in the reassessment.
  • Recommend that EPA account for genetic differences in susceptibility to methylmercury toxicity both in setting the RfD and in deriving the dose response relationship for developmental neurotoxicity outcomes.
  • Support EPA’s proposal to study a variety of DNT outcomes, including cognitive function and behavioral, structural, and electrophysiological effects, when setting the RfD. Specifically, IQ is not the optimal neurobehavioral outcome measurement for DNT effects of methylmercury.
  • Argue that EPA should include cardiovascular impacts in the IRIS assessment.
  • Advise EPA to be mindful of the possible complexities created by the confounding effects when interpreting studies of methylmercury exposure from fish consumption.

The Clinic’s comments are available here.

Emmett Clinic Files Comments Opposing EPA’s Proposal to Undermine Mercury Standards for Coal-fired Power Plants

Via the Emmett Environmental Law & Policy Clinic

Source: Pixabay

The Emmett Environmental Law & Policy Clinic submitted comments today on behalf of a group of leading scientists in opposition to the Environmental Protection Agency’s (EPA) proposal to rescind the finding underlying its regulation of mercury and other toxic air pollutant emissions from coal-fired power plants.  This proposal, if finalized, could lead to the repeal of regulations for the largest source of mercury emissions in the United States.

The Clinic filed the comments on its own behalf as well as on behalf of Elsie Sunderland, Charles Driscoll, Kathy Fallon Lambert, Joel Blum, Celia Chen, David Evers, Philippe Grandjean, Robert Mason, and Noelle Eckley Selin—leading experts in the fields of atmospheric transport, ecosystem fate and effects, bioaccumulation, human exposures, and health outcomes associated with environmental mercury contamination.  Students Nanding Chen and Veronica Wang wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho.

EPA regulates emissions of toxic air pollutants such as mercury under section 112 of the Clean Air Act.  When Congress amended the Clean Air Act in 1990, it directed EPA to set emissions standards for all major sources of 189 toxic air pollutants under a strict timeline.  The one exception was emissions from coal-fired power plants.  Congress in those same 1990 amendments had created the acid rain cap-and-trade program—which applied only to coal-fired power plants—and it was thought that the controls that power plants installed to reduce sulfur dioxide emissions might also reduce emissions of mercury and other air toxics.  Therefore, Congress instructed EPA to determine whether it was “appropriate and necessary” to regulate power plant emissions under section 112 after taking into account the effect of the acid rain program.

In the end, power plants largely complied with the acid rain program by switching to low-sulfur coal, and coal-fired power plants remained the leading source of mercury emissions in the United States.  EPA therefore determined in 2000 that it was appropriate and necessary to regulate toxic air pollutant emissions from power plants.  It confirmed this finding in 2012 and imposed emissions standards at that time.  All coal-fired power plants are now in compliance with those standards.

Nevertheless, EPA has now proposed to reverse its prior findings and conclude that it is not “appropriate” to regulate these emissions.  As our comments explain:

  • EPA’s proposal is based on an eight-year-old analysis which even at that time was incomplete and which underestimated the benefits of regulating power plant mercury emissions.
  • The scientific literature includes significant new evidence of the benefits of regulating power plant mercury emissions, including estimates of those benefits that are orders of magnitude larger than EPA’s.
  • It is now clear that reductions in mercury emissions from power plants result in localized and regional reductions in atmospheric mercury deposition, which amplifies the benefits of decreasing domestic emissions.
  • The entire industry has by now come into compliance with the mercury and air toxics standards. It is therefore no longer necessary to rely on predictions of the compliance costs.  Multiple analyses have estimated that the actual costs of compliance are less than a billion dollars per year compared to the $9.6 billion per year EPA predicted in 2011.
  • Regardless of whether EPA can reverse the appropriate and necessary finding, it does not have the authority to delist power plants or repeal their emissions standards without going through the section 112(c)(9) delisting process

The Clinic’s comments are available here.

What’s the Deal with Transparency in Science? The Emmett Environmental Law & Policy Clinic filed multi-disciplinary comment letters challenging EPA’s scientific “transparency” rule

EPA logo

Source: Wikimedia Commons

By: Lynne Dzubow, Clinical Fellow

The Emmett Environmental Law & Policy Clinic (EL&PC) submitted two sets of comments in August 2018 challenging the Environmental Protection Agency’s (EPA) proposed rule on scientific “transparency” in its decision-making. While transparency is a laudable goal, EPA’s rule would wrongly limit—not clarify or expand—the pool of scientific and medical knowledge available to the agency when issuing regulations to protect human health and the environment.

The Trump Administration has a troubling, topsy turvy relationship with the concept of transparency. On the one hand, it uses “transparency” as a pretext for preventing federal agencies from using the best available science to inform policy decisions. On the other hand, it tries to restrict access to government records, for example, through recently proposed Freedom of Information Act (FOIA) regulations.

Indicative of this trend, EPA issued a proposed rule entitled “Strengthening Transparency in Regulatory Science” in April 2018. The proposal requires that certain data and models be made “publicly available in a manner sufficient for independent validation,” and indicates that information will only satisfy this standard when “it includes the information necessary for the public to understand, assess, and replicate findings.”

By conflating public disclosure with the peer review process available and necessary to validate research, this requirement would deprive EPA of the data necessary to inform environmental health standards. Indeed, the proposal could have severe deregulatory effects by preventing EPA from using studies which rely on confidential medical data, older information that is not readily available, or evidence that was obtained from one-time events that cannot be replicated for moral or ethical reasons. Using the false crisis of “secret science” as a red herring, this proposed rule would not only threaten EPA’s mantle as one of the world’s leading environmental and human health research organizations, but would also place the agency in untenable legal jeopardy for most future regulatory actions.

Confidentiality of Private Health Information

As written, the proposal requires that the raw data establishing the scientific foundation for EPA’s regulations be made publicly available. However, as the Clinic’s comment letter representing the medical and research community points out, studies conducted on human research subjects are generally held to strict confidentiality standards. Under federal laws such as the Health Insurance Portability and Accountability Act (HIPAA) health care providers and associated research components are required to protect research subjects’ private health information. The Federal Policy for the Protection of Human Subjects, also known as the Common Rule, further requires federally-funded researchers to obtain Institutional Review Board (IRB) approval and informed consent of research subjects, during which process the researcher will typically need to make promises regarding confidentiality. Many academic institutions adopt the Common Rule as best practice for their research, even when it is not federally-funded.

These laws, along with customary research contracts and the Hippocratic Oath, form the basis of trust between a physician/researcher and her patient/subject. Requiring health study data to be made publicly available would have a chilling effect on the types of research necessary to inform standards on multiple environmental issues, from particulate matter in air to lead in drinking water.

For example, EPA’s 1997, 2006, and 2012 National Ambient Air Quality Standards (NAAQS) for fine particulate matter all relied on studies using confidential data, such as the 1993 Harvard Six Cities Study. Under the proposed “transparency” rule, such studies (and dozens of others) would be excluded from EPA’s regulatory process, likely skewing cost-benefit analyses and scientific conclusions to favor dangerously lax standards.

Best Available Science

The proposal not only conflicts with privacy laws, but also undermines the mandate Congress has imposed on EPA to use the “best available science” in developing regulations and standards. As an illustration, the Safe Drinking Water Act requires that EPA use “[t]he best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices,” and the Toxic Substances Control Act states that EPA “shall use scientific information, technical procedures, measures, methods, protocols, methodologies, or models, employed in a manner consistent with the best available science.” While the precise terminology varies across statutes, a common theme of these requirements is that EPA use scientific information that is considered “best,” regardless of whether the underlying raw data is publicly “available.”

By preventing EPA from considering peer-reviewed studies whose underlying data is not publicly available, the proposal unlawfully restricts and undermines EPA’s regulatory process.

Preparing for Litigation

The Clinic’s comment letters representing both the scientific and legal communities demonstrate the multi-disciplinary outreach of the EL&PC and the important connection between science, law, and the environment.

EL&PC’s letter on behalf of the scientific and medical community was signed by nearly 100 people, including Harvard President Larry Bacow, the deans of Harvard Medical School (HMS) and the Harvard T.H. Chan School of Public Health, and the presidents of Massachusetts General Hospital (MGH), Brigham and Women’s Hospital, Beth Israel Deaconess Medical Center, and Massachusetts Eye and Ear.

The Clinic’s letter on behalf of itself and other environmental law clinics had 12 signatories, representing clinics from the Columbia University School of Law, University of Chicago Law School, and University of Colorado Law School, among others.

EPA has delayed the finalization of the “transparency” rule until 2020. The significant backlash against the proposal by public health, medical, academic, and scientific groups has seemingly given EPA pause. Should EPA, however, move forward with the rule, these comment letters will become an important part of the administrative record. By reaching out and forming a coalition between the medical and legal communities, EL&PC created a strong basis for challenging EPA’s justification for implementing the “transparency” rule in court.

The Trump Administration’s Wonderland View of Transparency: Is an Agency’s FOIA Process Still Transparent if an Information Request Goes Nowhere?

Stack of binders

Source: Pexels

By: Lynne Dzubow, Clinical Fellow

On January 29, 2019, the Emmett Environmental Law & Policy Clinic (EL&PC) submitted comments challenging the Department of the Interior’s (DOI) proposed changes to its Freedom of Information Act (FOIA) regulations.

Consistent with the Trump Administration’s upside-down view of transparency, DOI proposed on December 28, 2018, various changes to its FOIA regulations that would curb public access to the agency’s records.  DOI is one of the largest federal agencies responsible for, among other things, permitting offshore drilling and managing National Parks. Any effort to restrict public participation in and understanding of the agency’s activities would not only be contrary to the intent of FOIA but also undermine public confidence in DOI’s actions.

Congress’s intent in enacting FOIA, the United States’ pre-eminent open government law, was “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Standards for information requests and exemptions to disclosure were clearly set by Congress, ensuring a balance between governmental transparency and agency efficiency. DOI’s proposed FOIA regulations would disturb this balance by imposing additional procedural burdens on the public and eliminating necessary safeguards for misdirected FOIA requests.

Discrete & Identifiable Agency Activities or Programs

The proposal introduces new specificity requirements for FOIA requests, requiring that they identify “the discrete, identifiable agency activity, operation, or program” regarding which the requester seeks information. This requirement is inconsistent with the statute, which requires only that the public “reasonably describe” the records sought. The statutory standard simply means that the information request must describe the records sought in enough detail to enable an agency official familiar with the matter to locate the records with a reasonable amount of effort. The proposed rule not only unlawfully exceeds this standard, but is also problematically vague.

Under this proposed provision, DOI could theoretically reject as overly broad a request for an agency official’s communications with special interest groups during a certain time period as long as the request did not also identify the discrete topics of those discussions. Considering that FOIA requests of this type were the impetus for investigations into apparent ethics violations by several top DOI officials, including Former Secretary Ryan Zinke, it is apparent why Congress did not want to impose excessive burdens on those requesting agency records.

Prohibition of Unreasonably Burdensome Searches

Another problematic aspect of DOI’s proposed regulations is their blanket prohibition against “unreasonably burdensome” searches or searches yielding large quantities of responsive records. As written, FOIA explicitly addresses how agencies should handle requests that result in large quantities of material. That is, agencies should attempt to narrow such requests by communicating with the requesters and are allowed to extend their processing time limits should such attempts prove unsuccessful. An agency is not, however, allowed to completely ignore a request because it is time-consuming or difficult to process. DOI’s proposed regulations do just this by allowing agency departments to “not honor” burdensome requests.

Refusal to Forward Misdirected FOIA Requests  

One of the more disingenuous aspects of the proposed regulations is DOI’s removal of statutorily required provisions guaranteeing that agency officials will forward misdirected requests to the appropriate DOI department. DOI’s justification for the proposal was a “surge” in FOIA requests and strain on administrative efficiency, but the proposed changes will do little to address this alleged problem. Requesters, who are often in the dark as to an agency’s structure and organization of records, may be reasonably uncertain as to the appropriate addressee for an information request. This is especially true with respect to DOI, which houses nine bureaus and eight offices. These components not only communicate internally, but also work together on projects. Accordingly, records regarding a specific topic might be retained by multiple DOI bureaus and offices. Without guaranteed help from knowledgeable DOI officials, the public is either left to guess, fail, and try again or required to preemptively contact the agency to formulate the request (although this may still not guarantee success).

Either way, a burden not envisioned by FOIA is placed on the public and administrative efficiency is reduced. In addition, the proposed removal is antagonistic to the goal of transparency, as information requests may never even meet their intended destination.

Clinics Have a Vested Interest in True Administrative Transparency

The Trump Administration has turned the concept of transparency on its head through its attempt to shield DOI from FOIA requests. Unfortunately, this troubling trend of obfuscation has no end in sight.

As law clinics, such as the EL&PC, depend on transparency from federal agencies to inform student projects and aid clients, EL&PC will continue to challenge attempts by this administration to undermine openness and accountability at the federal level.

Emmett Clinic Submits Comments Opposing Trump Administration’s Proposal to Weaken Clean Water Act Protections

Via the Emmett Environmental Law and Policy Clinic

Source: Pexels

The Emmett Environmental Law & Policy Clinic submitted comments in opposition to the Trump Administration’s proposal to revise the definition of “Waters of the United States” under the Clean Water Act.  This proposal, if finalized, will dramatically reduce the number of streams and wetlands that are protected under the Clean Water Act, with potentially catastrophic consequences for water quality across the country.

The Clinic submitted the comments on behalf of the National Parks Conservation Association (“NPCA”).  NPCA represents over 1.3 million supporters and members as “the voice of America’s National Parks.”  It has been a leading independent, nonpartisan voice on natural resource issues since 1919.  The rivers, streams, and lakes in many national parks across the country provide crucial habitat for fish and wildlife, offer recreational opportunities for visitors, and in many cases are central to the parks’ unique character and value.  The preservation of water quality and fish and wildlife habitat in national parks depends on the protection of upstream wetlands and ephemeral streams that would lose protection under the proposal.

The precise scope of federal jurisdiction under the Clean Water Act has long been uncertain.  The Supreme Court has weighed in on this issue several times, most recently in fractured set of opinions in Rapanos v. United States, 547 U.S. 715 (2006).  To resolve this ambiguity, the Environmental Protection Agency and the U.S. Army Corps of Engineers during the Obama Administration issued the Clean Water Rule, which identified simple categories of water subject to federal jurisdiction based on extensive scientific and technical analyses, including a synthesis of over 1,200 peer-reviewed scientific publications.  The Trump Administration now proposes to replace that rule with a new one that will substantially reduce Clean Water Act protections and increase regulatory uncertainty.

In the comments, the Clinic explains that:

  • The proposal will significantly reduce the number of waters protected under the Clean Water Act by eliminating protections for ephemeral streams and for wetlands that do not have a continuous surface connection to covered waters.
  • As a result, the proposal will result in significant ecological and economic harm by, among other things, damaging recreation and fish and wildlife habitat in national parks.
  • The agencies ignore the scientific evidence underlying the Clean Water Rule.
  • The proposal will create uncertainty and increase the administrative burden for permitting agencies and regulated entities by introducing several new and poorly defined terms to delineate the scope of jurisdiction.
  • The proposal is inconsistent with Congress’s purpose in enacting the Clean Water Act, which was to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. It also mischaracterizes Supreme Court authority and is based on a misunderstanding of the breadth of the agencies’ authority under the Commerce Clause.
  • The agencies are violating the Endangered Species Act and National Environmental Policy Act by not conducting the analyses required under those statutes.

Frank Sturges (JD ’20) wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho and Clinical Fellow Lynne Dzubow.

Clinic Paper Supports Use of Ratepayer Funds to Replace Lead Service Lines

Via the Emmett Environmental Law and Policy Clinic

The Clinic is releasing a paper analyzing the authority of water utilities in thirteen key states to use ratepayer funds to pay for full lead service line (LSL) replacement. The paper, “Rates Could Fund Lead Pipe Replacement in Critical States,” is the product of a partnership between the Clinic and the Environmental Defense Fund (EDF). Clinic Deputy Director Shaun Goho and Clinic student Marcello Saenz (JD ’19) researched and wrote the paper in collaboration with Tom Neltner, Chemicals Policy Director at EDF. Our analysis concludes that there are no explicit legal barriers to using ratepayer funds for LSL replacement in these states.

LSLs—the pipes that connect the water main under a street to the plumbing in a building—are the largest source of lead in drinking water in those homes that have them (see diagram).

Source: Lead Service Line Replacement Collaborative

Lead exposure can cause a variety of health problems and is particularly dangerous for young children. Drinking water can be a major source of exposure: an Environmental Protection Agency analysis concluded that formula-fed infants may receive 40% to 60% of their exposure to lead from drinking water. As a result, there is broad consensus that all six million LSLs in use around the country will eventually need to be replaced.

It can cost thousands of dollars to replace each LSL, so one major challenge is to figure out how to pay for these replacements. One logical approach is for water utilities to use rates paid by customers. However, because part of each LSL is on private property, some people have argued that ratepayer funds cannot be used because LSL replacement provides a private benefit to the homeowner.

We reviewed the laws of thirteen states, which collectively have an estimated 4.2 million LSLs, more than two-thirds of the nation’s total. In these states, we found no explicit barriers to using rate funds to replace the lines on private property. Publicly-owned utilities can act pursuant to existing state legislation by determining that the practice serves a public purpose—protecting public health. Investor-owned utilities can do the same, but typically need approval of the state’s utility commission. While we have not reviewed the remaining states, we anticipate that the state laws and policies are similar to the ones we evaluated.

Laws in states with the most lead service lines support using rates to fund replacement on private property: New analysis

Via the Environmental Defense Fund 

Source: Pixabay

By: Tom Neltner

Lead service lines (LSLs) – the lead pipes that connect a building’s plumbing to the water main under the street – are a significant source of lead in drinking water for those homes that have them. In light of the well-documented benefits to society from reducing children’s exposure to lead, there is a consensus that we need to replace the estimated six million LSLs remaining in the country. It will take time, but it needs to be done.

One challenge to this goal is how to fund replacement of the portion of the service line on private property. Because LSLs extend from under the street to a building, typically about half of the line is on public property and half is on private property. The perception among utilities has been that they do not have the legal authority to use rates paid by customers to cover the cost of replacing the portion on private property because it provides a benefit only to that property owner. This view was reinforced when the Wisconsin Public Service Commission blocked Madison from doing it, forcing the city to use other funds to complete the work. That decision from the early 2000s came before the risks of even low-level exposure to lead were well understood.

Many utilities have therefore taken to replacing only the portion of the LSL on public property when the property owner is unwilling or unable to pay to replace the portion on private property. The practice, often called “partial replacement,” is not only inefficient but can actually exacerbate residents’ exposure to lead. As evidence of the risks of even low-level exposure to lead—and of the society-wide benefits of reducing lead exposure—have mounted and the tragedy in Flint, Michigan made clear the need to replace LSLs, states like IndianaMissouriNew JerseyPennsylvania and even Wisconsin, have adopted new laws or policies that have allowed funds from rates, with some limitations, to be used to replace the side on private property. Michigan has gone further and adopted rules mandating the practice, although some utilities have challenged the rule in court.

Given the funding challenge and the trends in the states, EDF partnered with the Emmett Environmental Law & Policy Clinic at Harvard Law School to review the state laws and policies in the 13 states with the most LSLs. Clinic Deputy Director Shaun Goho and law student Marcelo Saenz conducted a state-by-state review of the laws, court decisions, and policies. The authors:

Found no explicit barriers to using rate funds to replace the lines on private property. These states have an estimated 4.2 million LSLs, more than two-thirds of the nation’s total. In these states, publicly-owned utilities can act pursuant to existing state legislation by determining that the practice serves a public purpose—protecting public health. Investor-owned utilities can do the same, but typically need approval of the state’s utility commission. While we have not reviewed the remaining states, we anticipate that the state laws and policies are similar to the ones we evaluated.

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Coastal Resilience Partnership unites 10 municipalities in effort to combat effects of climate change

Via the South Florida Sun Sentinel 

Source: Pixabay

By: Austen Erbalt

A new partnership between Palm Beach County and 10 of its coastal municipalities is hoping to combat the effects of climate change with a particular focus on sea level rise.

The Coastal Resilience Partnership consists of Palm Beach County, Boca RatonBoynton BeachBriny BreezesDelray BeachGulf StreamHighland BeachHypoluxoLake WorthLantana and Ocean Ridge. It was formally created with a grant from the Florida Resilient Coastlines Program, an initiative by the Florida Department of Environmental Protection to provide assistance and funding to coastal communities dealing with flooding, erosion and other changes.

Over 30 local representatives from the municipalities met at the Swinton Operational Complex in Delray Beach Feb. 28 to discuss and craft official principles within the partnership.

“It is truly inspiring to have so many of our local leaders ready to take action on climate change,” said Rebecca Harvey, Boynton Beach’s sustainability coordinator. She is also managing the grant-funded portion of the project.

“With the Florida Department of Environmental Protection’s support, we are able to face this challenge as a united force,” she said. “Approaching climate adaptation as a regional partnership will enable our communities to avoid costs while creating a more robust and consistent approach to climate adaptation.”

Last November, Boynton Beach joined the American Flood Coalition as part of its efforts to combat and prepare for rising sea levels, an effort led by Harvey.

Representatives from each municipality and the county have met informally over the past year to discuss sustainability planning and preparedness.

Carollo Engineers, Inc., an environmental engineering firm with offices in Coral Springs, Miami, Sarasota, Tampa and West Palm Beach, is providing consulting to synthesize data and help develop a vulnerability assessment.

“Our team is sincerely humbled and proud to be part of the CRP in uniting the region and paving the way for a cohesive climate adaptation strategy,” said Juan Oquendo, vice president and senior project manager of Carollo Engineers.

“As a local resident, I have experienced firsthand effects of climate change and rising sea levels and I am excited to take action,” Oquendo said. “Our team will create the framework of a climate vulnerability assessment considering the unique challenges to preserve our coastal communities.”

Harvard University Law School’s Emmett Environmental Law and Policy Clinic is providing pro bono assistance to formalize the collaboration, develop terms for a joint request for proposals and contribute information on climate vulnerability assessment best practices.

During the Feb. 28 meeting, Coastal Resilience Partnership members discussed future planning efforts, such as infrastructure, social and economic issues and protecting vital natural resources.

The coalition has future meetings planned for the spring and summer, but exact dates are not yet available.


Puerto Rico Benefits From Harvard’s Living Lab

Via Harvard Law Today 

Credit: Alyssa Curran
Still suffering from the aftermath of 2017’s Hurricane Maria, the city of Utuado (pictured) will implement a plan for renewable electricity, which was created by Harvard students in the “Climate Solutions Living Lab” course.

A plan designed by a team of Harvard University students to create a reliable source of renewable, affordable electricity for a Puerto Rican community hammered in 2017 by Hurricane Maria has moved a step closer to reality.

The community group Unidos por Utuado has won $100,000 in seed funding from the Puerto Rico Big Ideas Challenge to implement the plan by students enrolled in Harvard’s “Climate Solutions Living Lab” course.

The proposal calls for revitalizing three nearby, long-neglected hydroelectric units to generate inexpensive, reliable electricity that emits virtually no greenhouse gases. The students’ vision is that a community-based electric cooperative would own the power facility and ensure that local residents control new jobs and other benefits created by the project.

“The seed funding will allow the community to form the cooperative and hire people to help them move the concept forward,” said Wendy Jacobs ’81, the faculty leader of the course and the Emmett Clinical Professor of Environmental Law and director of the Emmett Environmental Law and Policy Clinic at Harvard Law School.

The project began in January 2018 when Jacobs dispatched one of six students on the team, Alyssa Curran, M.U.P. ’18, to the island. Curran toured Puerto Rico, including the storm-ravaged inland community of Utuado, and observed the destruction of homes and commercial buildings, roads, and electric infrastructure. She also connected with Unidos por Utuado, one of many community groups mobilizing disaster relief on the island. At the time, “Climate Solutions Living Lab” was considering several projects in Puerto Rico, and Curran, in consultation with Jacobs, decided one of those should focus on Utuado because of the barriers it faced to storm recovery.

Hurricane Maria decimated Puerto Rico. A Harvard T.H. Chan School of Public Health study found that the number of deaths related to the September 2017 storm was much larger than the official estimates, and there were 4,645 additional deaths in the three-month period following the storm, which is believed to have caused more than $90 billion in damage. Electric service was only recently restored to the entire island. In Utuado, an isolated mountain community of approximately 30,000, about 30 percent of households were without electricity and safe running water seven months after the storm struck.

Credit: Alyssa Curran 
The power poles in Cayey, located in central Puerto Rico, snapped during the storm.

Back at Harvard, the students participating in the spring 2018 class who were assigned to the Utuado project proposed that rather than build a new power source for the community, they would recycle an old one.

The plan was this: Utuado would create an electric cooperative to acquire and refurbish three legacy hydroelectric units on lakes Dos Bocas and Caonillas and install a pumped solar system. In addition to providing reliable energy, the facility would save money. Puerto Rican’s electric bills are the highest in the U.S. next to Hawaii, the students’ research found, and they believed that adopting their plan could slash electric rates to about 8 cents per kWh, compared with the approximately 20 cents per kWh they now pay.

The benefits to the climate were also clear, according to the students. Currently, 98 percent of Puerto Rico’s electricity is generated by fossil fuels. However, the students estimated the hydroelectric plants would generate approximately 26.5 megawatts of clean energy, with a potential offset of about 115,000 tons of carbon dioxide equivalents in year one and an average of 105,000 tons of offsets per year over a 20-year time period. Reducing that amount of emissions annually is equivalent to taking more than 22,000 vehicles off the road, or the average energy use of more than 11,000 homes.

The Puerto Rico project is one of nine projects developed in the course since its 2017 launch, as part of Harvard’s ambitious climate action goals and Living Lab initiative.

The innovative course is a partnership between the Office for Sustainability and Harvard Law School and was developed to engage multidisciplinary teams of graduate students in working together to test innovative solutions or renewable energy investments — such as the Puerto Rico project — that achieve actual emissions reductions beyond the Harvard campus while also achieving other social, economic, and health benefits.

Under Jacobs’ leadership, the Climate Solutions Living Lab engages with senior faculty experts from across Harvard’s professional Schools as well as outside experts, and operates like a professional project development team. The teams of six students are comprised of master’s and doctoral students from Harvard Business School (HBS), Harvard Chan School, John A. Paulson School of Engineering and Applied Sciences (SEAS), Law School, Harvard Kennedy School (HKS), Graduate School of Design, and Graduate School of Arts and Sciences.

In addition to Curran, the Puerto Rico team included: Ethan Hughes, Harvard Chan School; Leticia Rojas, HKS; Bridger Ruyle, SEAS; Max Tenney ’18, HLS; and Isabella Wechsler, HKS and HBS.

This article was published in the Harvard Gazette on December 14, 2018.

More than 20 Utah local leaders file court briefs opposing shrinkage of Bears Ears, Grand Staircase monuments

Via The Salt Lake Tribune 

By: Taylor Stevens

A group of 21 mayors and council members from around Utah have signed onto briefs with the U.S. District Court for the District of Columbia in support of lawsuits filed against President Donald Trump’s shrinking of the Bears Ears and Grand Staircase-Escalante national monuments.

The amicus friend-of-the-court briefs — filed Monday and drafted by the Harvard Law School’s Emmett Environmental Law & Policy Clinic and the Salt Lake City Attorney’s Office — contend that the process was flawed, with little input from local voices, and that the boundary reduction will have detrimental economic and environmental effects in the state.

“When the Trump administration began its review of Bears Ears and Escalante, many of us knew it was only a matter of time before these monuments were reduced and harm would come to our local economies,” Salt Lake City Mayor Jackie Biskupski, who signed onto the briefs, said in a news release.

The state’s perceived antagonism toward public lands, including designation of the Bears Ears National Monument, resulted in the departure of the Outdoor Retailer convention, which Biskupski said caused immediate economic harm to Salt Lake City through the loss of $45 million dollars in tourist spending. But she said the “truly devastating” part of the decision is its effect on gateway communities and the state’s reputation as friendly to the outdoors.

That’s “why we are filing these briefs,” she wrote, “to give everyone a voice in a decision which has consequences for every community.”

Five of the seven members of the Salt Lake City Council, as well as Salt Lake County Council members Jim Bradley, Arlyn Bradshaw, Jenny Wilson and Ann Granato, all Democrats, also signed on. So did members of the Summit County Council and Alta town council. The mayor of Boulder supported the Grand Staircase brief, while the mayor of Bluff endorsed the Bears Ears one.


Emmett Clinic Drafts Amicus Brief Explaining Dicamba Harms

Via Emmett Environmental Law and Policy Clinic

The Emmett Clinic filed an amicus brief in a 9th Circuit case challenging the Environmental Protection Agency’s approval of Monsanto’s XtendiMax—a new formulation of the highly-volatile and toxic herbicide dicamba.  EPA conditionally approved the product in 2016, based in part on Monsanto’s assurances that its formulation was less volatile than previous dicamba formulations.  Environmental and farming organizations challenged this decision in court.

Monsanto developed this new herbicide in response to increasing resistance to glyphosate (Roundup) in weeds.  Although dicamba is normally lethal to broadleaf crops such as soybeans and cotton, Monsanto genetically engineered varieties of these crops to be resistant to dicamba.  During the application process, commenters warned EPA that dicamba is very volatile and therefore has a tendency to drift, risking harm to other farmers’ fields or native vegetation.  As the Clinic’s brief explains, EPA’s approval of the herbicide resulted in widespread harm throughout the South and Midwest in 2017: at least 3.6 million acres of soybeans in 24 states were damaged by dicamba drift.  Farmers who want to plant soybeans feel that they have lost their freedom of choice: either they plant Monsanto’s resistant seeds or risk having their crops killed by drift from a neighboring farmer’s field.  EPA should not place farmers in this untenable position.

The Emmett Clinic filed this brief on behalf of several farmer support organizations: Family Farm Defenders, Farm and Ranch Freedom Alliance, Iowa Organic Association, Kansas Rural Center, Organic Farmers’ Agency for Relationship Marketing, Inc., Organic Farmers Association, and Save Our Crops Coalition.  Clinic student Heather Romero (JD ’19) and Deputy Director Shaun Goho wrote the brief.

Emmett Clinic Files Brief Supporting Chlorpyrifos Ban

Via Emmett Environmental Law and Policy Clinic

The Emmett Clinic filed an amicus brief  in a 9th Circuit case challenging the Environmental Protection Agency’s failure to ban agricultural uses of the organophosphate chlorpyrifos.  In 2016, EPA had proposed to remove all food tolerances for chlorpyrifos under the Federal Food Drug and Cosmetic Act—an action that would have prohibited all use of the pesticide on food crops.  Last year, however, Scott Pruitt reversed course and decided not to ban the pesticide, citing scientific uncertainty.  A coalition of environmental and farmworkers’ organizations have challenged this reversal in court.  The Clinic, representing the Alliance of Nurses for Health Environments, American Academy of Pediatrics, American Public Health Association, Migrant Clinicians Network, Physicians for Social Responsibility (PSR) and the San Francisco Bay Area Chapter of PSR, submitted an amicus brief in support of this challenge.

The brief explains that a significant body of research from both epidemiological and animal studies has demonstrated that children are vulnerable to long-lasting neurological harm from exposure to chlorpyrifos during pregnancy, even at levels far below the current tolerances permitted by EPA.  In particular, the studies show that chlorpyrifos can alter the very structure of the brain, as well as leading to attention deficit hyperactivity disorder and other behavioral problems.  In light of the large and robust research data demonstrating these harms, EPA cannot reasonably cite scientific uncertainty as a basis for failing to take action.

Clinic student Ryan Petty (JD ’19) wrote the brief under the supervision of Deputy Director Shaun Goho.

Clinic Releases Report on How to Address Climate Change in the Farm Bill

Via Emmett Environmental Law and Policy Clinic

The Emmett Environmental Law & Policy Clinic has released its new report, “Opportunities to Address Climate Change in the Farm Bill”, which summarizes the Clinic’s proposals for how to address climate change in the Farm Bill, both during the current authorization process and in the future.  The report provides recommendations for both climate mitigation strategies to reduce greenhouse gas (GHG) emissions and increase carbon sequestration from agriculture, and climate adaptation strategies to increase the resiliency of farms to the impacts of a changing climate.  The report’s specific recommendations are 1) incorporate resilience measures into crop insurance and conservation compliance to better manage on-farm climate risks under Titles II and XI; 2) ensure the best available science and research—including the outcome of pilot programs—are incorporated into Farm Bill programs; and 3) advance manure management collection and storage methods, as well as biogas development under Title IX to mitigate GHG contributions from livestock.

The paper was authored by Clinic students Sara Dewey, JD’17, Liz Hanson, HKS’18, Claire Horan, JD’18, Deputy Director Shaun Goho, and Director Wendy Jacobs.

Clinic Releases Report on Sampling Household Tap Water for Lead Contamination

Via Emmett Environmental Law and Policy Clinic

The Emmett Environmental Law & Policy Clinic has released its new report, “Detecting Lead In Household Tap Water: Sampling Procedures for Water Utilities,” which makes recommendations for how water utilities should sample household tap water to monitor the level of lead in their customers’ drinking water. The paper primarily focuses on sampling carried out by utilities for purposes of Lead and Copper Rule (LCR) compliance.

The details of when and how utilities collect water samples can dramatically influence the levels of lead that those samples contain. Some sampling methods risk significantly underestimating the lead levels to which customers may be exposed.

The Clinic provides a series of recommendations covering all stages of the sampling process, including ensuring that sampling sites represent at-risk homes; determining the best time of year for sampling; instituting a minimum nine-hour stagnation period; instructing residents not to remove aerators and to use high flow rate when collecting samples; and collecting additional and sequential samples.

The paper was authored by Clinic student Joshua Kestin, JD ’18 and Deputy Director Shaun Goho.

Emmett Clinic Files Brief Urging Public Disclosure of Agency Science Documents

Via Emmett Environmental Law and Policy Clinic

On November 20, 2017, the Emmett Environmental Law and Policy Clinic filed a brief in the Ninth Circuit supporting the release of important agency scientific documents under the Freedom of Information Act (FOIA). The Clinic filed the amicus brief on behalf of the Union of Concerned Scientists in a case involving draft Endangered Species Act (ESA) documents prepared by the U.S. Fish & Wildlife Service and the National Marine Fisheries Service (the Services) to assess the impact of a proposed Clean Water Act regulation on endangered and threatened species.

In December 2013, the Services prepared draft biological opinions concluding that the proposed regulation, which applied to power plant cooling water intake structures, would jeopardize the continued existence of some listed species. When the Environmental Protection Agency (EPA) finalized the regulation the following year, the Services released a joint biological opinion concluding that the regulation would not cause such jeopardy.

The Sierra Club filed FOIA requests, asking the Services to release the draft biological opinions and other draft ESA consultation documents. When the Services refused, invoking a doctrine known as the deliberative process privilege, the Sierra Club sued to gain access to the documents. The district court ruled in favor of the Sierra Club, ordering the Services to release the documents. The Services have appealed that decision to the Ninth Circuit Court of Appeals.

The Clinic’s brief argues that the deliberative process privilege should rarely apply to scientific documents such as biological opinions. Keeping such documents secret undermines government transparency and accountability. In science-driven processes like ESA consultation, it is important for the public and courts to be able to know that agencies have followed the expert advice of their scientists and that such analyses have not been undermined by political considerations.  Moreover, withholding these scientific documents does little to advance the purpose of the deliberative process privilege, which is to promote candid deliberations on sensitive policy matters. The brief therefore argues that the Ninth Circuit should adopt a presumption that the deliberative process privilege does not apply to ESA consultation documents.

Emmett Clinic Hosts Workshop on Citizen Science

Via Emmett Environmental Law and Policy Clinic

The Emmett Clinic released its Manual for Citizen Scientists Starting or Participating in Data Collection and Environmental Monitoring Projects in September, 2017. Building on this work, on October 13, 2017, the Clinic, together with the Environmental Defense Fund and the Environmental Law Institute convened a workshop called “Citizen Science and Environmental Protection.”

The workshop brought together representatives from federal, state, and local governments; citizen science organizations; environmental organizations; community groups; and academia. The keynote speaker was Bob Perciasepe, President of the Center for Climate and Energy Solutions (C2ES) and former Deputy Administrator of the Environmental Protection Agency.

Participants discussed the role of citizen science in environmental monitoring and enforcement, case studies of successful projects, legal and practical barriers for citizen scientists, and strategies for promoting citizen science in the coming years.  Based in part on the ideas generated in this workshop, the Clinic will be developing new citizen science-related student projects for future semesters.

Clinic Files Amicus Brief in the D.C. Circuit in Support of Mercury and Air Toxics Rule

Via Emmett Environmental Law and Policy Clinic

On January 25, 2017, the Clinic filed an amicus brief in the U.S. Court of Appeals for the D.C. Circuit in Murray Energy Corporation, et al. v. United States Environmental Protection Agency, et al. on behalf of Elsie M. Sunderland and eight other scientists in the latest round of the Mercury and Air Toxics Rule litigation. This case involves challenges to the Environmental Protection Agency’s regulations limiting emissions of mercury and other hazardous air pollutants from power plants. After the Supreme Court remanded the Rule to EPA in Michigan v. EPA, 135 S. Ct. 2699 (2015), EPA completed a supplemental consideration of the costs associated with the regulation. In this brief, the Clinic argued that 1) mercury is a dangerous toxic metal and that power plants are the largest domestic source of mercury emissions; and 2) that the scientific literature confirms EPA’s conclusion that there are significant benefits to regulating power plant mercury emissions.

Clinic student Joshua Lee (JD’18) wrote the brief with Senior Clinical Instructor Shaun Goho.

Former Irish President Connects Climate Change and Human Rights

Via Harvard Crimson

Former Irish President Mary Robinson

Former President of Ireland Mary T. W. Robinson speaks about climate justice at Harvard Law School on Thursday. Robinson, who has previously served as the United Nations High Commissioner for Human Rights, was appointed by U.N. Secretary-General Ban Ki-moon to be his Special Envoy on El Niño and Climate. MEGAN M. ROSS

Mary T.W. Robinson, a former president of Ireland and current United Nations Special Envoy on El Niño and Climate, spoke about widespread human displacement due to climate change at a discussion at Harvard Law School on Thursday evening.

Law School Dean Martha L. Minow moderated the discussion in front of a packed audience. “There is nobody on earth who is more involved, who has done more on the subjects that bring us here today,” Minow said when introducing Robinson.

Robinson has previously served as the United Nations High Commissioner for Human Rights and as Special Envoy of the Secretary-General for Climate Change. She is also president of the Mary Robinson Foundation—Climate Justice.

During the conversation, Robinson emphasized the need for international policies promoting sustainability, especially given the increasing vulnerability of millions of people living close to sea level. The discussion included an examination of empirical data and observations regarding the effects of climate change, as well as the suggesting of proposals for effective policy responses. …

The discussion is part of a three-day conference hosted at the Law School aiming to investigate the challenges of climate change, displacement, and human rights. The conference is sponsored by the International Human Rights Clinic, the Emmett Environmental Law and Policy Clinic, and the Harvard Immigration and Refugee Clinic.

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Harvard strengthens ‘living laboratory’ to help mitigate climate impact

Via HLS News

Wendy Jacobs, clinical professor and director of Harvard Law School’s Emmett Environmental Law and Policy Clinic, will lead the Living Lab Course and Research Project

Credit: Graphic by Judy Blomquist/Harvard Staff

Healthy buildings and clean air keep people healthy.

That simple premise is driving a series of studies being conducted by Harvard researchers, some of which have gathered insights from University dorms and office buildings. It is part of a multiyear partnership between the Office for Sustainability and the T.H. Chan School of Public Health’s Center for Health and the Global Environment to usecampus spaces to inform public health research and apply the findings in capital projects and renovations.

This partnership and another involving faculty and students working to reduce greenhouse gas emissions are being hailed as models for the type of collaborative work that the University wants to stimulate as it launches a reinvigorated “campus as a living laboratory” initiative. The effort will support projects that use the campus as a test site for developing solutions that enhance well-being and mitigate climate impact, or help neighboring communities tackle these problems. The outcomes will be specifically designed for sharing at local, regional, and global levels.

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Clinic’s Shaun Goho Authors Paper on the Legal Implications of Report-Back in Household Exposure Studies

Via Emmett Environmental Law and Policy Clinic

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.

From Practicing Corporate Law to Making the Case for Dolphins: Alice Lee’s journey

Via HLS News

Alice Lee LL.M. ’16

Credit: Lorin Granger/HLS Staff Photographer
Alice Lee LL.M. ’16

As Alice Lee LL.M. ’16 talks about her decision to pursue an LL.M. degree in the United States, she breaks into a smile. “I love animals and wildlife. I just feel something for them.” After two years practicing corporate law in Taiwan following her undergraduate dual degrees in law and biology, she decided that it was time to finally pursue her dream: work to protect animals and the environment.

As the daughter of two Harvard postdocs in biochemistry, Lee was born just across the river from HLS in the Longwood area of Boston, but grew up in Taiwan. “At every point in my schooling, my parents said, ‘What about going to the U.S.?’ After junior high, after high school, after college, and then finally I realized it was time.”

In 2012, while awaiting her Taiwan bar exam results, Lee embarked on her first formal role in environmental protection. She donned her Greenpeace outfit, and armed with her clipboard, she approached passersby on the street with petitions and a plea for donations. To her surprise, it was quite rewarding. “It’s fun. You see who you’re sharing the planet with, and these people, collectively, have the power to shape the political debate. It’s good to know what they’re thinking and why they do or don’t have a lot of concern for the environment. Even if they don’t want to become a supporter, it’s always good talking with them,” recalls Lee.

At HLS, Lee participated in the Environmental Law and Policy Clinic; enrolled in Environmental Law with Professor Jody Freeman, Wildlife Law with Lecturer on Law Jonathan Lovvorn, and the Supreme Court and Environmental Law seminar with Professor Richard Lazarus; and also audited Animal Law with Professor Kristen Stilt.

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Harvard Law School Group Pushes Virtual Power Plants in Massachusetts

Via Microgrid Knowledge 

virtual power plantA Harvard Law School group is urging Massachusetts regulators to test virtual power plants – possibly as part of microgrids – as the state moves to modernize its electric grid.

The school’s Emmett Environmental Law and Policy Clinic raised the idea of utilities demonstrating virtual power plants in comments filed last week before the Massachusetts Department of Public Utilities. The DPU is reviewing grid modernization plans proposed last year by its investor-owned utilities.

Akin to microgrids, virtual power plants are a collection of intelligently controlled distributed energy resources that can act like a single power plant in relation to the grid and energy markets. They often serve a group of customers that are either identified by a utility or aggregated by a private entity.

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Hunting polluting gases around Boston

Climate fund grant supports efforts to track sources of mysterious leaks

Via Harvard Gazette

Video thumbnail for Wofsy-UrbanLab-FINAL

Harvard students, faculty, and fellows are training new high-tech instruments on Boston’s skies, searching for one well-known troublemaker and one escapee among the atmosphere’s invisible gases.

The old troublemaker is carbon dioxide, the greenhouse gas released by burning fossil fuels that long has been known as the main cause of climate change. The escapee is methane, an even more powerful emission that is the main component of the natural gas burned in home furnaces and in the electricity-generating power plants that are shouldering aside coal-fired plants across the country.

Though both are fossil fuels, burning natural gas is better than burning coal when it comes to the environment, because natural gas releases half as much carbon dioxide for an equal amount of energy generated. In addition, it is far cleaner than other pollutants in its burning, including in the fine particles that can cause health problems.

Unburned natural gas, however, is another story.

Methane is a far more powerful greenhouse gas than carbon dioxide and, if it escapes into the atmosphere unburned, can trap between 15 and 100 times more solar radiation than carbon dioxide can. Understanding how methane gets into the atmosphere from both natural and manmade sources has become an important focus of climate research.

Steven Wofsy, Harvard’s Abbott Lawrence Rotch Professor of Atmospheric and Environmental Science, said it’s pretty clear that a significant amount of unburned natural gas is escaping in the Boston region. He is leading a project to find the source of the leak or leaks and, in collaboration with faculty and students from Harvard Law School, seeking to design technical, legal, or regulatory solutions to reduce the emissions. …

The project is being conducted in collaboration with Hutyra and Wendy Jacobs, clinical professor of law and director of the Emmett Environmental Law and Policy Clinic at Harvard Law School.

Jacobs said the interdisciplinary nature of the project is key, and the goal is not just to use science to illuminate the problem of methane and carbon dioxide emissions in the city, but to design laws and regulations to address the problem.

“Laws, regulations, and public policy will not be effective unless informed by reliable science and data. Reliable science and data can effectively be deployed to solve a problem when integrated into new technologies, laws, regulations, and public policies,” Jacobs said. “The collaboration of our distinct disciplines is more powerful than either discipline alone.”

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Expanding my Horizons through the Environmental Law Clinic

By Cade Carmichael, J.D. ’17

I must admit that during the 1L clinical registration period, I was a bit worried about transitioning into the “life” of a clinical student. Sure, I had put many hours into my Student Practice Organization work as a 1L, but being a clinical student seemed a bit daunting. That said, I knew that I wanted to register for a clinic, specifically the Emmett Environmental Law and Policy Clinic (ELPC). Of course, it wasn’t until I got started with ELPC that my 1L fears were put to rest.

Cade Carmichael, J.D. '17

Cade Carmichael, J.D. ’17

For starters, despite wanting to be involved with the clinic, I had no background in environmental law – at least not in comparison to many of my peers. Turns out, this wasn’t a problem in the least, and my guess is that “lacking a background” isn’t a barrier to many of HLS’ clinics, precisely because they are here to give us substantive experience and to improve as lawyers. In the case of ELPC, there was a conscious effort on the part of the clinic to get me involved even before the semester had started! Through early discussions with clinic supervisors, I found a real opportunity to craft the kind of clinical experience I had hoped to have.

Since I started, I have dealt with wonderful projects that I never would have expected, including everything from a petition to the Office of Management and Budget at the White House designed to reduce CO2 emissions from university research laboratories, to researching questions of whether synthetic rhinoceros horn is “derived” from a real animal product, to analyzing applications of the “Rights of Nature” section of the Ecuadorian constitution, to revising decades old noise ordinances in order to bring them into the 21st century. These and other projects have entailed duties ranging from direct client interaction, to more high-level regulatory research, which is precisely what has made my time with the clinic so enjoyable: every project is a unique experience. In turn, I’ve not only improved my skills in areas that might be expected, such as writing memos, but I’ve also had a chance to explore completely new areas such as writing portions of a suggested regulatory amendment and digesting a flurry of ideas coming from a room full of motivated clients.

When looking back at these past two semesters with ELPC, I realize that they have been the most interesting and engaging portion of my law school experience thus far. So if I had one piece of advice for anyone considering a clinic, it would be to go for it, as your horizons will certainly expand as a result!

Clinic and Environmental Defense Fund (EDF) Release Fisheries Co-Management Paper

Via Environmental Law and Policy Clinic

Fisheries Co-Management in the United States: Incentives, Not Legal Changes, KeyThe 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.

Clinic’s Jacobs, Goho Co-Author Commentary on Health Benefits of Mercury Regulation

Via Emmett Environmental Law and Policy Clinic

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.

Read the news article from Harvard SEAS on the commentary.

Read the commentary from the Clinic’s Publications page.

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