Publications – Page 2 – Emmett Clinic

Conservation Law Foundation v. U.S. Environmental Protection Agency (D.Mass., Case No. 20-cv-10820-DPW)

On December 17, 2020, the Emmett Clinic filed an amicus brief on behalf of the National Parks Conservation Association (NPCA) in Conservation Law Foundation v. U.S. Environmental Protection Agency. The Clinic’s brief argues that the rule violates the Administrative Procedure Act because the agencies failed to conduct an adequate analysis of the rule’s impacts on the scope of protected waters, and of the serious environmental, ecological, and recreational consequences it will produce.

Amicus Briefs Defense of Science

Wild Virginia v. Council On Environmental Quality (W.D. Va, Case No. 3:20-CV-00045-JPJ-PMS)

On November 30, 2020, the Clinic filed an amicus brief in support of the plaintiffs in Wild Virginia v. Council on Environmental Quality, challenging the Council on Environmental Quality’s (CEQ) recent revisions to its regulations implementing the National Environmental Policy Act (NEPA). The Clinic’s brief argues that the recent CEQ revisions are inconsistent with Congress’ intent in enacting NEPA, in that CEQ’s new regulations will significantly weaken the effectiveness of the NEPA process by lessening the frequency and scope of NEPA analyses, reducing public involvement, and limiting judicial review.

Guides Clean Water Act

Legal Issues in Dam Removal: A Guide for Massachusetts Dam Owners

This August 2020 guide from the Clinic provides information on some common legal issues and questions related to dam removal for dam owners in Massachusetts and their attorneys.

Comments on Regulations and Other Agency Actions Clean Air Act

Comments On Proposed Rule: “Increasing Consistency and Transparency in Considering Benefits and Costs In The Clean Air Act Rulemaking Process,” 85 Fed. Reg 35,612, Docket ID No. EPA-HQ-OAR-2020-0044

On August 3, 2020, the Clinic submitted comments on behalf of the Chesapeake Bay Foundation and the National Parks Conservation Association on the Environmental Protection Agency’s Proposed Rule “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” The comments urge EPA to withdraw the Proposed Rule in light of the agency’s lack of authority to promulgate the Rule under Section 301 of the Clean Air Act, including because there is no demonstrated need for the Proposed Rule and because the Proposed Rule would encode value judgments that substantively affect public and private parties.

Amicus Briefs Endangered Species Act

United States Fish and Wildlife Service, et al. v. Sierra Club, Inc. (U.S. 19-547)

On August 3, 2020, the Clinic filed an amicus brief in the U.S. Supreme Court urging the Court to affirm a 9th Circuit decision in a case involving the application of the Freedom of Information Act (FOIA) to Biological Opinions prepared under Section 7 of the Endangered Species Act (ESA). The 9th Circuit rejected the argument of the U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) that the Biological Opinions are exempt from disclosure under the deliberative process privilege.

Comments on Regulations and Other Agency Actions Clean Air Act

Comments On Review of the National Ambient Air Quality Standards for Particulate Matter (Proposed Rule), 85 Fed. Reg. 24,094

On June 26, 2020, the Clinic submitted comments on behalf of researchers at the Harvard T.H. Chan School of Public Health and the Boston University School of Public Health on EPA’s proposal to leave in place the current NAAQS for particulate matter. The Clinic’s comments emphasized the irony that even as EPA rushes through an erroneous decision resulting from a flawed process in the midst of the COVID-19 global pandemic, evidence is emerging that fine particulate matter pollution may be exacerbating the effects of that pandemic.

Comments on Regulations and Other Agency Actions Defense of Science

Comments On Strengthening Transparency in Regulatory Science, Supplemental Notice of Proposed Rulemaking 85 Fed. Reg. 15,396 (Mar. 18, 2020) [Docket ID No. EPA–HQ–OA–2018–0259]

On May 18, 2020, the Clinic filed comments on the U.S. Environmental Protection Agency’s supplemental notice for its “Strengthening Transparency in Regulatory Science” proposal on behalf of Harvard President Lawrence Bacow and more than three dozen other leaders in science and medicine from Harvard University. The supplemental notice expands on a proposed rule from 2018 that would prevent EPA from relying on the best-available, peer reviewed scientific information in many contexts and would therefore undermine EPA’s ability to fulfill its mandate to protect the public health and safety of Americans.

Statutes, Ordinances, and Guidance Climate Change Adaptation

Strategies for Massachusetts Municipalities to Implement Net Zero Building Mandates

This paper examines legal complexities that Massachusetts towns and cities must navigate when mandating reductions of greenhouse gas emissions from the building sector. The paper evaluates a range of municipal options, concludes that several are viable with existing authority, and then provides an annotated model ordinance for apporach. Although the focus is on mandatory actions, the paper also briefly outlines ideas for voluntary and incentive-based approaches to promoting net zero building (“NZB”) goals.

Amicus Briefs Climate Change

American Lung Association v. EPA (D.C. Cir. No. 19-1140)

On April 24, 2020, the Clinic filed an amicus brief on behalf of a number of leading climate scientists, economists, and the Union of Concerned Scientists in the litigation over the Affordable Clean Energy (ACE) Rule, EPA’s replacement for the Clean Power Plan.

Amicus Briefs Climate Change

Kelsey Cascadia Rose Juliana v. United States of America (9th Cir. en banc, No. 18-36082)

On March 12, 2020, the Clinic filed an amicus brief on behalf of public health experts, public health organizations, and doctors in the U.S. Court of Appeals for the Ninth Circuit in Kelsey Cascadia Rose Juliana v. United States of America (9th Cir. en banc, No. 18-36082). This brief in support of plaintiffs’ petition for en banc review follows a previous brief that the Clinic filed before the 9th Circuit panel in February 2019.

Comments on Regulations and Other Agency Actions Defense of Science

Comments On Proposed Rule: Update to The Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1,684 (Jan. 10, 2020) (Docket ID No. CEQ-2019-0003)

On March 10, 2020, the Clinic submitted comments on behalf of itself and 15 other environmental law clinics on the Council on Environmental Quality’s (CEQ) proposed update to its Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA). The comments request that CEQ withdraw the proposal because it unlawfully narrows the scope of environmental review, public participation, and judicial review, is inconsistent with decades of precedent and practice, and is beyond the scope of CEQ’s authority under NEPA.

Comments on Regulations and Other Agency Actions Climate Change Adaptation

Comments in Support of Brookline’s Prohibition on New Fossil Fuel Infrastructure in Major Construction

On February 27, 2020, the Clinic submitted comments on the first municipal bylaw in Massachusetts to limit the use of natural gas in new and modified buildings. Writing on behalf of Mothers Out Front Massachusetts, the Clinic’s explained that Brookline’s “Prohibition on New Fossil Fuel Infrastructure in Major Construction” (Article 8.39) reflects a traditional exercise of municipal authority that is not preempted.

Comments on Regulations and Other Agency Actions Defense of Science

Comments regarding health equity, environmental justice, and civil rights aspects of proposed revisions to its Lead and Copper Rule in the National Primary Drinking Water Regulations, Docket No. EPA–HQ–OW-2017-0300

These comments submitted by the Clinic, Environmental Defense Fund (EDF), and Dr. Karen Baehler of American University focus on the health equity, environmental justice, and civil rights aspects of the EPA’s proposed revisions to its Lead and Copper Rule (LCR). The Clinic’s/EDF’s analysis of the proposed revisions, as well as Dr. Baehler’s study of lead service line replacements, indicate that the revisions are likely to make environmental justice and health equity issues worse, contrary to EPA’s assessment that the revisions “are not expected to have disproportionately high and adverse human health or environmental effects on minority populations and low-income populations.”…

Articles Climate Change

Testimony – Breaking Through

Wendy B. Jacobs, Testimony – Breaking Through, The Environmental Forum, Environmental Law Institute (January/February 2020 Issue)…

Comments on Regulations and Other Agency Actions Defense of Science

Written Statement for SAB’s draft report on the National Emission Standards for Hazardous Air Pollutants: Coal- and Oil- Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review, 84 Fed. Reg. 2670

On January 10, 2020, the Clinic submitted comments to the EPA Science Advisory Board (“SAB”) on the SAB’s draft report on the National Emission Standards for Hazardous Air Pollutants: Coal- and Oil- Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review, 84 Fed. Reg. 2670 (Feb. 7, 2019).

Comments on Regulations and Other Agency Actions Defense of Science

Written Statement on the SAB’s draft commentary on proposed Revised Definition of “Waters of the United States,” 84 Fed. Reg. 4154

On January 10, 2020, the Clinic submitted comments to the EPA Science Advisory Board (“SAB”) on the SAB’s draft commentary on EPA and the U.S. Army Corps of Engineers’ proposed Revised Definition of “Waters of the United States,” 84 Fed. Reg. 4154 (Feb. 14, 2019).

Amicus Briefs Agriculture

League of United Latin American Citizens v. Andrew Wheeler (9th Cir. No. 19-71979/19-71982)

On December 13, 2019, the Clinic submitted an amicus brief in a 9th Circuit case challenging the Environmental Protection Agency’s failure to ban agricultural uses of the organophosphate pesticide chlorpyrifos. 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. This brief builds on a previous one that the Clinic filed in an earlier round of litigation (League of United Latin American Citizens, et al. v. Pruitt (9th Cir. No. 17-71636), filed February 13, 2018).

Amicus Briefs Defense of Science

Natural Resources Defense Council v. U.S. Environmental Protection Agency (S.D.N.Y. No. 1:19-cv-05174-DLC)

On October 16, 2019, the Clinic filed an amicus brief in the Southern District of New York in a case challenging former EPA Administrator Scott Pruitt’s directive to exclude scientists who hold EPA research grants from serving on the agency’s scientific advisory committees. This brief was one of three that the Clinic filed in the summer and fall of 2019 on behalf of former officials in the EPA and other federal agencies.

Articles Climate Change Adaptation

Legal Options for Municipal Climate Adaptation in South Boston: An Example for Connecticut Coastal Jurisdictions

Nicole Rinke & Sarah Fort, Legal Options for Municipal Climate Adaptation in South Boston: An Example for Connecticut Coastal Jurisdictions, 5 Sea Grant L. & Pol’y Rev. 89 (2012).

Articles Fracking

Municipalities and Hydraulic Fracturing: Trends in State Preemption

Shaun A. Goho, Municipalities and Hydraulic Fracturing: Trends in State Preemption, Planning & Envtl. L., July 2012, at 3.