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In its work, the Clinic produces a variety of work product, including white papers; model or draft statutes, ordinances, and regulations; comments on proposed regulations or permits; amicus briefs; guides; and published articles. Below are a sampling of these publications.

White Papers

Certifications for Green Infrastructure Professionals – The Current State, Recommended Best Practices, and What Governments Can Do to Help. This July 2014 report released by the Clinic and the Environmental Policy Initiative surveys the current state of Green Infrastructure (GI) professional certification programs, discusses obstacles to the development of widely accepted certifications, and suggests measures that governments can take to promote certification programs. The report also recommends best practices for GI certification program design and implementation based on design options observed in existing GI certifications.

Regional and Municipal Stormwater Management: A Comprehensive Approach. This June 2014 report released by the Clinic and the Environmental Policy Initiative analyzes options for addressing stormwater pollution at both the regional and municipal level. The report encourages the adoption of green infrastructure by municipalities as a stormwater pollution reduction strategy, and recommends that municipalities consider participating in a regional program as a comprehensive and cost-effective way to address stormwater pollution.

Responding to Landowner Complaints of Water Contamination from Oil and Gas Activity: Best Practices. $fracking white paper cover for website$ This May 2014 report released by the Clinic and the Environmental Policy Initiative provides recommendations for state lawmakers and agencies to consider implementing to develop robust, comprehensive policies for responding to landowner complaints. If adopted, these practices can help ensure that agencies conduct a thorough investigation of potentially contaminated water sources, landowners obtain an accurate understanding of the finding, and the investigatory process is open and transparent.

Suggested Indicators of Environmentally Responsible Performance of Offshore Oil and Gas Companies Proposing to Drill in the U.S. Arctic. This December 2013 report suggests a set of performance indicators for use to evaluate and predict the environmental performance of companies proposing to drill for oil or gas in the U.S. Arctic. In developing this suggested set of indicators, the Clinic attempted to address all aspects of offshore oil and gas operations in the Arctic, including exploration, drilling, production, and product transportation, and to cover both the risk of catastrophic accidents and environmental impacts that occur during the course of normal operations.

Beyond the 2020 Plan: A Review of the Massachusetts Clean Energy and Climate Plan. This report, published in August 2013, presents a dozen concrete suggestions to help the Commonwealth of Massachusetts achieve its greenhouse gas emissions reduction goals under the Global Warming Solutions Act. Suggested measures include promoting of electric vehicle use and promoting the transition to LED (light emitting diodes) public lighting both on municipal roads and on property managed by state agencies.

The Solar Property Tax Exemption in Massachusetts: Interpretations of Existing Law and Recommendations for Amendments. Released in July 2013, this white paper recommends the Massachusetts legislature remove confusion about tax incentives for solar photovoltaic (PV) projects, to enable more homeowners and business owners to install renewable energy. The paper reviews the sources of legal uncertainty and surveys the approaches taken by other states to exempt solar projects from property taxes.

Offshore Aquaculture Regulation Under the Magnuson-Stevens Fishery Conservation and Management Act. This June 2013 white paper reviews the applicability of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to aquaculture and makes several recommendations for ways in which the National Marine Fisheries Service can better apply the MSA to minimize the environmental impacts of offshore aquaculture. This paper is also part of the ongoing collaboration with the Environmental Law Institute and the Ocean Foundation.

Offshore Aquaculture Regulation Under the Clean Water Act. Released in December 2012 in collaboration with the Environmental Law Institute (ELI) and the Ocean Foundation, this paper posits that while offshore aquaculture is still a nascent industry, EPA can—and should—develop appropriate tools to establish adequate oversight of these facilities in federal ocean waters. In particular, the paper recommends that (1) EPA ensure that all offshore facilities that discharge into the ocean are considered point sources and must obtain a discharge permit; (2) improve the standards for offshore aquaculture facility permits to set numeric limits for all types of discharges; and (3) identify data needs and develop requirements for monitoring and reporting for all facilities in the ocean.

Recommendations for Improved Oversight of Offshore Drilling Based on a Review of 40 Regulatory Regimes. This white paper, published in June 2012, is the first step in a multi-semester project of the Clinic to make recommendations for the effective regulation of offshore drilling in the Arctic. Based on a review of 40 domestic and international regulatory programs in the areas of health, safety, environment, and finance, the paper identifies general program elements that would improve the regulation and oversight of offshore drilling.
- Appendix: Regulatory Programs and Organizations Analyzed January-April 2012.

Legal Options for Climate Adaptation in South Boston. The Clinic issued this white paper in August 2011, as part of its ongoing collaboration with the City of Boston in the City’s climate adaptation planning. This paper analyzes legal options available to the City to respond to the effects of climate change, with a particular focus on the impacts of sea level rise in South Boston.

Municipal Climate Change Adaptation and the Insurance Industry. This white paper, released in April 2012, examines ways in which municipalities such as the City of Boston can work with the insurance industry to promote climate adaptation.

Working Paper: Proposed Liability Framework for Geological Sequestration of Carbon Dioxide. Released in November 2010, this working paper proposes a detailed liability framework for carbon capture and sequestration to provide certainty, assuage public concerns, and remove barriers to CCS projects.

Appendix A: CCS Liability Act of 2010

Appendix B: Risks of Geological Sequestration

Appendix C: Sequestration Liability Frameworks Enacted by States, Countries

Appendix D: Roadmap Recommendations for a Liability Regime

Appendix E: Federal Trust Fund Models and Analysis

The Summary Report of the Expert Workshop Addressing CCS Liability, Oversight, and Trust Fund Issues. Released in October 2010, the summary report represents a synthesis of the main points and arguments that emerged from the discussion at the Clinic’s June 21, 2010, expert workshop on CCS liability, oversight, and trust fund issues.

Statutes, Ordinances, and Guidance

The CCS Liability Act of 2010. This proposed federal statute establishes a detailed liability framework for carbon capture and sequestration to provide certainty, assuage public concerns, and remove barriers to CCS projects.

Climate Adaptation Procurement Guidance. This memorandum proposes and explains guidance under which the City of Boston could incorporate climate adaptation planning in its procurement process.

Climate Adaptation Article 80 Guidance and Checklist. This memorandum proposes and explains guidance and a checklist under which the City of Boston could incorporate climate adaptation considerations in its Article 80 development review process.

Comments on Regulations and Other Agency Actions

Comments on Draft Safety Culture Policy Statement for Offshore Drilling. On March 20, 2013, the Clinic submitted comments to the Bureau of Safety and Environmental Enforcement (BSEE) on BSEE’s Draft Safety Culture Policy Statement for Offshore Drilling. In the comments, the Clinic argues that the draft’s focus on process safety is overly narrow, and that the Bureau should “guide organizations to design a safety culture that embeds a meaningful commitment to environmental safety and protection.”

Comments on USDA Proposed Changes to Nutrition Standards for School Lunch Programs. On April 12, 2011, the Clinic submitted comments to the U.S. Department of Agriculture on its proposed changes to the nutrition standards for school lunches. The Clinic’s comments urged the Department (1) to require a daily vegetarian option to protect the health of students with religious dietary restrictions, (2) to shift its commodity subsidies to support the purchase of more fresh fruit and vegetables, and (3) to broaden its regulatory impacts analysis to include the environmental impacts of meat production.

Comments on the Control of Emissions from Large Compression-Ignition Engines on Ocean-Going Vessels. On March 6, 2008, the Clinic submitted comments to the U.S. Environmental Protection Agency on the agency’s Advanced Notice of Proposed Rulemaking regarding the regulation of emissions from large (Category 3) engines on ocean-going vessels. In particular, the Clinic urged the agency to apply the Category 3 regulations to foreign-flagged vessels.

Comments on Proposed Modifiction of General Permit WGMR064. On November 16, 2011, the Clinic submitted comments on the Pennsylvania Bureau of Waste Management’s proposed revisions to general permit WGMR064. The revision would allow the use of natural gas well brines for dust suppression and road stabilization purposes.

Comments on Proposed Modification of General Permit WGMR064 without appendices

Comments on Proposed Modification of General Permit WGMR064 with appendices

Amicus Briefs

Amicus Brief, Utility Air Regulatory Group, et al. v. U.S. Environmental Protection Agency (U.S. 12-1146 and consolidated cases). In January 2014, the Clinic filed an amicus brief in a U.S. Supreme Court case involving challenges to EPA’s regulation of greenhouse gas emissions from stationary sources under the Prevention of Significant Deterioration program of the Clean Air Act. In the brief, filed on behalf of Calpine Corporation, the Clinic described Calpine’s experience as a company that had gone through the PSD permitting process for greenhouse gases on six occasions. In contrast to the assertions of some of the petitioners in the case, Calpine’s experience demonstrated that GHG PSD permitting has not resulted in excessive delays or costs.

Amicus Brief, Brockton Power Company, LLC v. Energy Facilities Siting Board (Mass. SJC No. 11405). In February 2014, the Clinic filed an amicus brief in support of a decision by the Massachusetts Energy Facilities Siting Board disapproving the use of the City of Brockton’s municipal water supply as the primary source of cooling water for a proposed electric-generating facility. The Clinic argued, on behalf of non-profit conservation and resource stewardship groups, that the impacts of such proposed large water uses must be evaluated with respect to both individual water bodies and the watersheds in which those waters are located.

Amicus Brief, City of Brockton v. Energy Facilities Siting Board (Mass. SJC No. 11406). Questions before the Massachusetts Supreme Judicial Court in this case included whether the Massachusetts Energy Facilities Siting Board failed to appropriately consider whether a proposal to construct a new power plant complied with the Massachusetts Executive Office of Energy and Environmental Affairs’ Environmental Justice Policy. The Clinic, on behalf of an environmental advocacy organization, argued that, when a project has potential to impact environmental justice neighborhoods, the Environmental Justice Policy requires both enhanced opportunities for public participation and equal protection against environmental burdens, including an enhanced analysis of impacts on environmental justice communities.

Amicus Brief, Decker v. Northwest Environmental Defense Center (U.S. No. 11-338 and 11-347). The question before the U.S. Supreme Court in Decker was whether channeled stormwater runoff from industrial logging operations is subject to the permitting requirements of the Clean Water Act. In October 2012, the Clinic filed an amicus brief on behalf of a professor of forest road engineering that described the ways in which the construction, operation, and maintenance of logging roads and associated drainage structures are integral parts of an industrial activity—namely, mechanized forestry.
Amicus Brief, White Stallion Energy Ctr., LLC v. U.S. Environmental Protection Agency (D.C. Cir. No. 12-1100). In this case, the D.C. Circuit is reviewing challenges to the Environmental Protection Agency’s landmark regulations governing emissions of hazardous air pollutants from coal-fired power plants. The Clinic, on behalf of a group of law professors including Professors Freeman and Lazarus, argued that EPA’s regulatory approach was justified by the history and text of the Clean Air Act.
Amicus Brief, Center for Food Safety v. Vilsack (9th Cir. 12-15052). In April 2012, the Clinic filed an amicus brief on behalf of organic farmers, producers of organic foods, and organic advocacy organizations in a case challenging the Department of Agriculture’s decision to allow the unrestricted use of Roundup-Ready alfalfa (RRA). The Clinic argued that the agency’s decision will cause significant economic harm to the organic industry and that a more limited deregulation decision, which imposed geographic restrictions and buffer zones, would reduce this harm.

Amicus Brief, Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers (U.S. 09-247). In September 2009, the Clinic filed an amicus brief in support of a petition for certiorari in a case challenging the Army Corps of Engineers’ decision to issue permits to coal mining companies to engage in activities that would result in the burial of more than 13 miles of Appalachian streams.

Guides

A Landowner’s Guide to Hydraulic Fracturing: Addressing Environmental and Health Issues in Oil and Gas Leases (Revised Edition, July 2014). This expanded and revised edition of the guide builds upon the previous edition. In particular, it is aimed at landowners across the country and contains information relevant for property owners who are considering whether to sign a lease to allow either oil or gas extraction by hydraulic fracturing, including proposed lease language.

Simple Ways to Save Money and the Environment: Practical Tips on Energy Use from the Harvard Environmental Law and Policy Clinic. In October 2008, the Clinic issued guides for consumers in nine northeastern states, explaining how to conserve energy, purchase clean energy, and qualify for tax credits and other incentives for renewable energy generation.