CleanLaw

EELP senior staff attorney Sara Dewey speaks with Andy Mergen, Faculty Director of the Emmett Environmental Law and Policy Clinic at Harvard Law School and former chief of the Appellate Section of the Environment & Natural Resources Division at the Department of Justice. Andy and Sara discuss the origin and evolution of presidential authority to designate national monuments under the Antiquities Act, how Congress and the courts have responded to these designations over the act’s 118-year history, present day legal challenges to the Bears Ears and Grand Staircase-Escalante national monuments, and what could be ahead for monuments in the Supreme Court.

Transcript here https://eelp.law.harvard.edu/wp-content/uploads/2024/08/CleanLaw_EP97-final.pdf

In this episode, EELP Founding Director and Harvard Law Professor Jody Freeman speaks with Andy Mergen, faculty director of the Emmett Environmental Law and Policy Clinic at Harvard Law School and former chief of the Appellate Section of the Environment & Natural Resources Division at the Department of Justice. Jody and Andy break down what they call the “Quagmire Quartet” of recent Supreme Court decisions that overturn the Chevron doctrine and undermine administrative agencies. They discuss the new challenges that federal agencies will face as they work to protect the public, the ways in which the Supreme Court has centralized power in the judiciary, how courts can continue to uphold important federal rules, and why they have hope.

Transcript available at http://eelp.law.harvard.edu/wp-content/uploads/CleanLaw_EP96-transcript.pdf

California has had a pivotal role in creating US clean car and clean air regulations under multiple administrations. In this episode, EELP Founding Director and Harvard Law Professor, Jody Freeman, speaks with Mary Nichols, former Chair of the California Air Resources Board and California's Secretary for Natural Resources, as well as former Assistant Administrator for EPA's Office of Air and Radiation. They discuss California's role in driving car and air emissions regulation, how automakers and market forces have evolved since the 1970s, and what may happen in the coming years under either election outcome.

Transcript: http://eelp.law.harvard.edu/wp-content/uploads/Jody-and-Mary-episode-95.pdf

Ari Peskoe, director of our Electricity Law Initiative, speaks with Claire Wayner, senior associate at RMI's Carbon-Free Electricity program, and Casey Baker senior program manager at GridLab. They discuss how the utility industry thinks about building new high-voltage transmission lines and how FERC Order No. 1920 attempts to push the industry to develop more transmission to accommodate new, clean sources of electricity while maintaining a reliable and affordable power system.

Transcript (pdf): http://eelp.law.harvard.edu/wp-content/uploads/CleanLaw_EP94.pdf

Hannah Perls, EELP Senior Staff Attorney, and Deanna Moran, vice president of healthy and resilient communities at the Conservation Law Foundation in Boston, walk through some of the surprising ways that law and policy drive adaptation decisions in Massachusetts and beyond, including state and local building codes, design standards and risk disclosures, how to make our utilities more resilient without forcing ratepayers to bear the costs, and permitting. We also dig into current advocacy efforts for a wicked resilient New England.

Show notes:

Conservation Law Foundation report on The Massachusetts State Building Code & Climate Change https://www.clf.org/wp-content/uploads/2019/03/CLF_ClimateCodeReport_2019.pdf

Environmental Law Institute report on State Protection of Nonfederal Waters: Turbidity Continues https://www.eli.org/sites/default/files/files-pdf/52.10679.pdf

An Act Promoting Climate Safe Buildings https://malegislature.gov/Bills/193/SD18

An Act Relative to Electric Utility Climate Resilience and Microgrids https://malegislature.gov/Bills/193/SD786

Follow Deanna on X/Twitter demoran18

Transcript: http://eelp.law.harvard.edu/wp-content/uploads/CleanLaw_EP93.pdf

The Endangered Species Act, which turned 50 years old on December 28, 2023, has been described as one of the most potent environmental law statutes ever enacted. Harvard Law Professor Richard Lazarus and Andy Mergen, director of the Harvard Law Emmett Environmental Law and Policy Clinic, discuss the initial bipartisan support for the act, the Supreme Court cases that shaped its implementation, and the success of the law in protecting numerous species. They also talk about how the Endangered Species Act could be improved and the risks that it may face in the future.

Quotes

“… I spent 33 years litigating the Endangered Species Act. As my colleagues who are still at the Department of Justice can attest, litigation in this space is often very frustrating. There are bad cases, there are bad outcomes, but I think by any measure, we ought to understand we should step back at this 50th anniversary and say congrats to that Congress, congrats to President Nixon. This is really a powerful statute.” —Andrew Mergen [39:19]

“That’s the fabulous thing about this law. It’s not an anthropocentric law. It’s a biocentric law. It’s a law which recognizes the responsibility that humankind has to all species on our planet. So it’s not a law which is saying, ‘This is really important for the economy.’ No, it’s a law that’s saying, ‘This is important for our spirit, this is important for who we are.’” —Richard Lazarus [30:12]

“So you need to have ways to actually have the statute provide incentives for private landowners to actually maintain the habitat, not view the statute as a threat to economic viability.” —Richard Lazarus [43:07]

“When the wolves were put back onto the landscape in the greater Yellowstone ecosystem, the Nez Perce tribe played an important role in that. We now see with the California condor the Northern California tribes playing an important part in the re-establishment of those populations, and that is a plus and a really important part of the future of the act.” —Andrew Mergen [45:45]

Transcript (PDF): http://eelp.law.harvard.edu/wp-content/uploads/CleanLaw-EP92.pdf

In this episode Harvard Law professor and EELP’s Founding Director Jody Freeman, speaks with Bjorn Otto Sverdrup, Chair of the Oil and Gas Climate Initiative’s Oil and Gas Executive Committee, Riley Duren, CEO and Founder of Carbon Mapper, Peter Zalzal Distinguished Counsel and Associate Vice President of Clean Air Strategies at Environmental Defense Fund, and EELP’s Executive Director, Carrie Jenks.

They discuss international and domestic efforts to reduce methane emissions, the Global Methane Pledge from COP 26, the Oil and Gas Decarbonization Charter from COP 28, the Biden administration’s recently released final methane rule for the oil and natural gas sector, the technology innovation that is making it increasingly possible to detect methane leaks, and the climate benefits of focusing on methane.

Transcript available here http://eelp.law.harvard.edu/wp-content/uploads/CleanLaw-91-transcript.pdf

Ari Peskoe, director of our Electricity Law Initiative, speaks with Staff Attorney Hannah Dobie about Ari’s new article about power sector governance, Replacing the Utility Transmission Syndicate’s Control. They discuss how FERC’s legal authority shapes regional governance, how independent decisionmaking by Regional Transmission Organizations is compromised by utilities and other incumbent firms, and why this is holding back the industry’s innovative potential. 

Transcript available here https://eelp.law.harvard.edu/wp-content/uploads/CleanLaw-90-transcript-RTO.pdf

Ari's paper is here https://eelp.law.harvard.edu/2023/11/replacing-the-utility-transmission-syndicates-control/

Show notes with graphic mentioned at 23:15 https://eelp.law.harvard.edu/2023/11/cleanlaw-replacing-the-utility-transmission-syndicates-control-hannah-dobie-interviews-ari-peskoe-about-his-new-article-in-energy-law-journal/

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

Transcript here:http://eelp.law.harvard.edu/wp-content/uploads/CleanLaw-89-transcript.pdf

Harvard Law Professor and EELP’s founding director Jody Freeman, speaks with Andy Mergen, director of Harvard Law’s Emmett Environmental Law and Policy Clinic, about a case the US Supreme Court will hear this fall, Loper Bright Enterprises v. Raimondo, in which petitioners have asked the Court to overrule the Chevron doctrine — a legal doctrine that governs when a court should defer to an agency’s interpretation of a law. The case arises under the Magnuson–Stevens Fishery Conservation and Management Act, which authorizes requiring commercial fishing vessels to carry onboard observers, but the statute doesn’t specify that the fishermen should pay for those observers.

Jody and Andy talk about how the Supreme Court might cabin or overrule the Chevron doctrine, and what the case might mean for other environmental regulations and federal regulation more broadly.

Transcript: http://eelp.law.harvard.edu/wp-content/uploads/CleanLaw-88-transcript-8-23-2023.pdf

Quotes:

"The Chevron case involved a reading by the Environmental Protection Agency in the Reagan administration that was actually helpful to business, and allowed them some flexibility in updating facilities without having to get new permits under the Clean Air Act. Those were the facts of Chevron. It was viewed as a flexibility-enhancing interpretation, a deregulatory, business-friendly interpretation." –Jody Freeman [6:00]

"I think that the folks who are advancing an anti-administrative state agenda are just worried that Congress has created a pretty robust environmental statutory regime, a pretty robust human health and safety regime, and the agencies are proceeding in good faith to implement Congress's goals there. I think that at this point in the game, folks who are anti-regulatory would rather detooth the professional staff in those agencies rather than abide by what really does appear to be a neutral doctrine on its face." –Andy Mergen [29:20]

"This is a profoundly important tool for the lower courts, to get their handle on issues that they’re confronting every day from agencies. It’s a really, really important framework for promoting stability and rule of law values. I think we would lose a lot if we were overturning Chevron."  –Andy Mergen [48:10]

"Even if you overturn Chevron, you can't avoid the fundamental problem, which is that Congress is giving agencies a job to do, and they need to have some flexibility interpreting their mandates" –Jody Freeman [53:55]