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.

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.

Via timesunion

Lawyers and students from Harvard Law School will help Albany County make its case in a lawsuit that claims a new federal rules on oil train safety are not strict enough, County Executive Daniel McCoy said Thursday.

The school’s Emmett Environmental Law and Policy Clinic will help the county draft its argument to the U.S. Circuit Court of Appeals in Washington, D.C., in support of a lawsuit brought against the U.S. Transportation Department this fall by a coalition of environmental groups.

“This is an extremely positive development for the county and our case against the DOT,” said McCoy. “By working with Harvard Law School, we will be able to have access to the highest legal analysis on this important environmental issue with no legal costs to our taxpayers for this service.”

This the first time the clinic has joined in national litigation over crude oil train issues, said Shaun Goho, a professor who is senior clinical instructor. The number of such trains has risen dramatically since 2013 due to the hydrofracking boom in the Bakken fields of North Dakota.

“So far, we are assisting only Albany County, but we could become involved later with other local governments,” Goho said.

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Via the Emmett Environmental Law and Policy Clinic 

On March 4, 2015, the Clinic filed an amicus brief in the U.S. Supreme Court on behalf of the Union of Concerned Scientists in State of Michigan, et al. v. Environmental Protection Agency, et al. (U.S. 14-46 and consolidated cases). This case involves challenges to the Environmental Protection Agency’s regulations limiting emissions of mercury and other hazardous air pollutants (HAPs) from power plants. In its brief, the Clinic argued that Congress, in directing EPA to regulate power plant HAP emissions if “appropriate and necessary,” intended that the agency make a decision based on a scientific analysis of the public health impacts of the industry’s emissions, and that cost would be factored in later when setting the regulatory standards.

Clinic student James Zhu (J.D.’16) wrote the brief with Clinic Director Wendy Jacobs and Senior Clinical Instructor Shaun Goho.

Via the Emmett Environmental Law & Policy Clinic 

The Emmett Environmental Law & Policy Clinic, in collaboration with Earthjustice, the Sierra Club, ForestEthics, and Oil Change International, submitted comments today on an Advanced Notice of Proposed Rulemaking issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the U.S. Department of Transportation (DOT) on potential revisions to its rules establishing the threshold for comprehensive oil spill response planning (OSRPs) by railroads carrying crude oil.

In the comments, the Clinic and other organizations urge the PHMSA to : 1) require the preparation of comprehensive OSRPs for all trains carrying crude oil; 2) provide greater specificity regarding requirements for comprehensive OSRPs; and 3) mandate that comprehensive OSRPs be provided to state, tribal, and local emergency response commissions and committees as well as the general public.

Clinic student Justin Lu (JD’16) worked on the comments with Senior Clinical Instructor and Staff Attorney, Shaun A. Goho.

Shaun Goho, Lecturer on Law and Senior Clinical Instructor, Emmett Environmental Law and Policy Clinic

Shaun Goho
Lecturer on Law and
Senior Clinical Instructor
Emmett Environmental Law and Policy Clinic

I have been working with the clinic since the summer of 2008. It’s hard to believe that it has already been close to six years.

In terms of substantive environmental issues, I am particularly interested in the regulation of shale gas and shale oil extraction as well as the promotion of renewable energy. From a procedural perspective, I am interested in citizen enforcement of environmental laws and the doctrines that govern access to the courts. I also have an interest in environmental history.

In the clinic, we have done a number of projects over the last few years in connection with shale gas and shale oil extraction. I mention an ongoing project below. Previous projects have included an investigation of the authority of municipalities to regulate, limit, or ban oil and gas extraction within their borders and the preparation of a guide for landowners who are negotiating with oil and gas company that wants a lease to drill on their land. As for renewable energy, we have been litigating for several years over the ability of renewable energy contractors to contract for, supervise, and perform the non-electrical portions of solar photovoltaic (PV) installations in Massachusetts. Last year, we also wrote a white paper suggesting ways to eliminate the current uncertainty over the scope of the property tax exemption for solar PV projects in the Commonwealth.

I have also worked with students on a number of amicus briefs over the last couple of years, including ones in cases involving the regulation water pollution from active logging roads under the Clean Water Act, the deregulation of Roundup-Ready Alfalfa by the Department of Agriculture, and the regulation of hazardous air pollution from power plants under the Clean Air Act. Most recently, we filed an amicus brief in the winter term on behalf of Calpine Corporation in the U.S. Supreme Court greenhouse gas permitting case, UARG v. EPA.

We are finishing up a paper with recommendations for ways that state agencies can improve their processes for responding to complaints about water contamination associated with oil and gas development. In another project, we are attempting to identify best practices for state and federal programs that promote conservation easements, either through providing tax breaks or through direct monetary grants. In a third project, we are examining the legal authority to create microgrids under Massachusetts public utility law.

Outside of work, I like to run, hike, read, go to movies and concerts, and hang out with my family.