Hana Vizcarra

California clean tech innovator Bloom Energy, with its noncombustion, low-emission fuel cells, is hardly taking the same approach to powering the planet as oil giant Chevron, but one thing the companies have in common are slick promotional campaigns defining them as environmental pioneers. That public relations savvy, though, has lately become a liability for both firms...Unlocking the black box of corporate secrecy is a central pillar of federal and state plans for confronting warming, which are increasingly focused on requiring a wide range of businesses, including financial firms, food suppliers and tech giants, to be painstakingly — perhaps uncomfortably — specific with investors and the public. Even secret contributions to advocacy and political groups could soon be forced into the daylight. “Companies can’t say they have all these policies to reach goals and not pursue them,” said Hana V. Vizcarra, a staff attorney at the Harvard Law School Environmental and Energy Law Program. “Regulators are really interested in this.”

The Biden administration and Democrats in Congress are gearing up for another run at mandatory reductions of the oil and natural gas industry's methane emissions, amid signals from the sector that it might accept some additional controls as part of its contribution to addressing climate change. Given that methane has about 84 times the global warming potential of carbon dioxide over a 20-year period, agreement is widespread that further reductions are necessary...In this particular case, the Trump rollback came in the form of two separate rules amending the 2016 rule, explained Hana Vizcarra, staff attorney at the Harvard Law School Environmental and Energy Law Program, in an email to IHS Markit. "In one, the Review Rule, the EPA reinterpreted the Clean Air Act in a way that limited its authority to regulate and, they argued, required them to cut storage and transmission out of the rule entirely. The other, the Reconsideration Rule, dealt with technical aspects of the requirements," she wrote. To greatly simplify the situation, Vizcarra said that the current proposed CRA resolution would only rescind the Review Rule, and "because this was an amendment to the 2016 rule, its disapproval would mean the regulations would revert back to the 2016 status quo." But the Reconsideration Rule elements would stand as modifications to that 2016 rule.

Red states that sued the Biden administration for tinkering with the estimated cost of emitting greenhouse gases may have fired a premature opening shot in the legal war over the president's climate agenda, environmental lawyers say. But the lawsuit provides a preview of the courtroom brawls that will ensue once the Biden team finalizes a new social cost of carbon, a key metric that assigns a dollar value to the harm caused by planet-warming emissions. "I think this particular complaint is unlikely to go anywhere," said Hana Vizcarra, a staff attorney at the Environmental and Energy Law Program at Harvard Law School. "But it's a precursor to what we're going to see in response to any rulemaking that comes out of this administration." ... Hannah Perls, a legal fellow with Harvard Law School's Environmental and Energy Law Program, said she still expects the Biden administration to lower the discount rate in its final social cost of carbon.

Environmental policy has emerged as a primary target for conservative attorneys general looking to keep the Biden agenda in check, the latest battleground in a long-running conflict over the scope of federal regulation. Republican-led states have filed a half-dozen lawsuits against the administration so far, with the three biggest actions focused on the White House’s energy and climate policies...The latest of those cases arose Wednesday as Louisiana and 12 other states suedthe Biden administration over a federal oil and gas leasing pause, while Wyoming filed its own case. Earlier in the month, Texas led a 21-state coalition in a challenge to President Joe Biden’s decision to block the Keystone XL pipeline, and Missouri and 11 others sued over the administration’s reworked metric for climate impacts. Those are the first multistate coalition lawsuits filed against Biden. “This is a strong indicator that we will see aggressive litigation from Republican AGs challenging the Biden administration’s climate and air regulations,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program.

The Biden administration is expected to give even greater weight to the negative effects of greenhouse gas emissions as it works on developing new “social costs” of carbon, methane and nitrous oxide that will impact government regulations. President Biden took the first step toward establishing a new formula when he revived an interagency group to work on calculating the costs of greenhouse gas emissions shortly after taking office. The costs are used by federal agencies to determine the benefit of regulations that prevent the gases from being emitted into the atmosphere, or, conversely, how great the costs are for not limiting emissions...Some experts noted that another challenge with social costs is ensuring they last longer than one administration. Achieving that goal, they said, is best achieved by having a strong scientific basis for the final numbers. “Courts do not look kindly on agencies that just swing dramatically back and forth on how they approach rulemaking,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. “What they’re looking for is a process that is backed up by objective facts and science.”

The Biden administration likely will face a tough climb in the courts and on the ground if it tries to push for national ambient air limits on greenhouse gases, experts and lawyers say. Acting Environmental Protection Agency Administrator Jane Nishida wrote last week that the agency “did not fully and fairly assess the issues raised” by a 2009 petition to set National Ambient Air Quality Standards, or NAAQS, for carbon dioxide. The standards are the cornerstone of air pollution law under the Clean Air Act...Regardless of the outcome, Biden’s decision to reconsider the standards is indicative of how the new administration is balancing risk-taking with more “tailored” approaches reflecting knowledge gained from a decade of regulation turnover, said Hana Vizcarra, a staff attorney with the Harvard Law School’s Environmental and Energy Law Program. “This whole-of-government approach, I think, gives them a little more flexibility to decide where they can push and try something new,” she said.

A new legal attack on the Biden administration’s climate agenda is an aggressive opening shot from Republican attorneys general set to become the president’s persistent courtroom foes, but the case faces steep procedural hurdles. Outside lawyers say the 12 states challenging President Joe Biden’s executive order addressing the cost of greenhouse gases may have filed their lawsuit too early, making it more effective as a messaging tool than a legal one...The social cost of greenhouse gases is an analytical tool used by many agencies to calculate the impacts of their actions by putting a price on emissions of carbon dioxide, methane, and other gases. The Trump administration slashed the values, assigning a lower cost to emissions...Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, called the states’ arguments “hyperbolic.” “The social cost of carbon does not regulate anything, it is a tool that can help inform agencies when executing their statutorily given regulatory authority,” she said, adding that even the Trump administration used the tool, albeit with lower values, in its analyses.

Waste companies have long been comfortable dealing with regulations about tracking and reducing greenhouse gas emissions, but heightened attention may make that more complex in the years ahead. The pressure to address contributions to climate change is starting to come from new sources. Growing numbers of customers and investors are insisting that all industries — waste included — record greenhouse gas emissions and shrink their carbon footprints. In a relatively short period, considering how a company may be exacerbating the effects of climate change morphed from a peripheral concern for investors to a mainstream inquiry. “I continue to be impressed by how quickly this conversation has changed, and how rapidly it's evolved in the last few years,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental & Energy Law Program. In January, for example, the chief of the investment group BlackRock, which has holdings in several major waste companies, wrote a letter to CEOs urging them to bring their net emissions to zero by 2050. In many cases that objective would be more aggressive than the climate targets set by the industry’s largest companies. The request comes with force, as the firm has begun to hold companies accountable for their climate-related choices.

President Joe Biden teed up a slew of clean air and carbon issues as top environmental priorities for his administration in a new executive order signed this week. Biden on Jan. 21 directed agencies to examine dozens of Trump-era rules, including carbon emissions, clean air rollbacks, and Clean Air Act rules on science and costs. Any bold standards Biden has in mind to stem emissions from industry through the Clean Air Act will almost certainly get challenged in court...The U.S Court of Appeals for the District of Columbia Circuit handed Biden a huge win Jan. 19 when it struck down President Donald Trump’s carbon rule for coal-fired power plants. The new White House now has a fresh start to craft greenhouse gas standards for existing sources. The D.C. Circuit opinion affirmed Obama-era justifications for regulating power plant carbon under the Clean Air Act, but Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Program, isn’t expecting a Clean Power Plan 2.0. “Even the ambitions of the Clean Power Plan were limited compared to what the ambitions of this administration are,” she said.

President Biden, vowing to restore environmental protections frayed over the past four years, has ordered the review of more than 100 rules and regulations on air, water, public lands, endangered species and climate change that were weakened or rolled back by his predecessor. But legal experts warn that it could take two to three years — and in some cases, most of Mr. Biden’s term — to put many of the old rules back in place...In the early days of the Trump administration, Republicans used that law to quickly wipe out 16 Obama-era rules. But legal experts have warned Democrats that using that law to undo environmental policies could backfire: once Congress has used it to wipe out a regulation, the administration is legally barred from enacting a substantially similar rule. That twist would bar the Biden administration from replacing a weak Trump-era rule with a similar but more stringent one. “They don’t want to create roadblocks to creating future regulations,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, who has closely studied the Trump administration’s rollbacks. Ms. Vizcarra cited just one such rollback as a good candidate for rapid reversal under the Congressional Review Act: a January rule that reduced protections for migratory birds by ending penalties for energy and construction companies that harm the birds and their habitats in construction projects and oil spills.

President Biden, vowing to restore environmental protections frayed over the past four years, has ordered the review of more than 100 rules and regulations on air, water, public lands, endangered species and climate change that were weakened or rolled back by his predecessor...Mr. Biden’s team has also looked to Congress, where Democrats could potentially use their razor-thin House and Senate majorities to revoke some of the Trump administration’s last-minute regulatory rollbacks. Under the Congressional Review Act, any regulation finalized within 60 legislative days of the end of a presidential term can be overturned with a simple congressional vote. In the early days of the Trump administration, Republicans used that law to quickly wipe out 16 Obama-era rules. But legal experts have warned Democrats that using that law to undo environmental policies could backfire: once Congress has used it to wipe out a regulation, the administration is legally barred from enacting a substantially similar rule. That twist would bar the Biden administration from replacing a weak Trump-era rule with a similar but more stringent one. “They don’t want to create roadblocks to creating future regulations,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, who has closely studied the Trump administration’s rollbacks. Ms. Vizcarra cited just one such rollback as a good candidate for rapid reversal under the Congressional Review Act: a January rule that reduced protections for migratory birds by ending penalties for energy and construction companies that harm the birds and their habitats in construction projects and oil spills.

A federal court ruling on power plant emissions paved the path for President Joe Biden’s climate plans, but future litigation over greenhouse gas regulations could throw up hurdles, attorneys and legal scholars say. Biden’s aggressive climate plans got a leg up Tuesday when the U.S. Court of Appeals for the District of Columbia Circuit struck down the Trump administration’s Affordable Clean Energy (ACE) rule, which softened greenhouse gas emission regulations for existing power plants. The ruling allows Biden to sidestep a lengthy rulemaking processes that would have been required to dismantle ACE and install a replacement rule. The decision isn’t a total “slam dunk,” Harvard Law School’s Environmental and Energy Program staff attorney Hana Vizcarra told Bloomberg Law. Future legal battles over climate regulations are likely still on the horizon, she said, but the victory does give the new administration an advantage. “It gives them sort of a fresh start in how they approach the regulation of greenhouse gases of existing power plants,” she said. Even with the boost, the Biden administration must contend with a 6-3 conservative majority on the high court that may be reluctant to approve sweeping agency actions.

In October 2017, President Donald Trump’s critics were celebrating. They’d won their latest fight against the new administration’s industry-friendly environmental agenda, and were confident in racking up more victories...The ruling followed two other legal rebukes for Trump’s energy and environment policies, decisions that came down in quick succession in the early days of his term. The new administration had gotten off to a rough start in the courtroom. Fast forward to 2021, and the story of the Trump team’s legal scorecard is more complicated, showing a mixed record of success, failure, and unresolved cases. Its exact win-loss rate in environmental cases is the subject of ongoing debate—a moving target depending on which lawsuits are tallied and how they’re categorized...Incoming Biden officials are set to move quickly to review and unwind many of those decisions, which will render much of the litigation moot—though some cases may stay on track. “They were swinging for the fences, and they knew if a few cases were able to get courts to agree with their interpretation, that would have a lasting impact,” Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, said of the Trump administration. “If they had another four years, they would have that opportunity.”

Supreme Court nominee Amy Coney Barrett raised a remarkable question among legal experts when she declined to affirm the presence of rising temperatures and their human-driven causes. Would acknowledging climate change jeopardize her ability to appear impartial when overseeing cases involving global warming? The facts of climate change are well-established, and some experts note that judges have a responsibility to acknowledge them unequivocally in order to rule on questions related to the powers of federal agencies...Other judges haven’t had a problem affirming the science of climate change, including Justice Brett Kavanaugh, who was appointed to the high court by President Trump in 2018. “The Earth is warming, and humans are contributing, and I understand the international collective action problem here; I understand that very well,” Kavanaugh said in 2016 when serving on federal appellate court. His comments came during arguments over the Obama-era Clean Power Plan...Judges often attempt to understand science as part of their decisionmaking. Hana Vizcarra, a staff attorney with Harvard Law School, noted that judicial questions regarding climate change are no different. “At a time when many judges are recognizing the need to educate themselves on the basic facts and science around the current state of climate change, it is interesting that [Barrett] feels the topic is not relevant to the job,” she said in an email.

Even the judge who struck it down this week doesn’t think this is the end of a rule on methane emissions that the Trump administration has been fighting for three-and-a-half years. On Thursday, October 8th, Wyoming federal judge Scott Skavdahl issued a 57-page decision rescinding an Obama-era rule that limited emissions of methane, a greenhouse gas 30 times stronger than CO2, from oil and gas drilling operations on federal and Indian lands...The decision could have big consequences. If Skavdahl’s ruling stands, and if separate court cases cement the Environmental Protection Agency’s view under the Trump administration that it lacks broad rule-setting authority, then “there will be little hope for a future administration to be able to regulate methane emissions from oil and gas operations without an act of Congress,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, in emailed comments...Yet this isn’t the first time that the Obama-era rule has appeared dead. In September 2018 the Trump administration stripped the meat off it and reissued it as a new, far narrower rule — only for a California court in July 2020 to strike down the skinnier replacement and order the original reinstated. Appeals are ongoing. “The roller coaster has returned to the station, though the Court doubts any of the parties will be exiting the ride just yet,” Judge Skavdahl wrote acerbically of the 3.5-year legal saga. “[I]t is likely this Court's decision will not end this ride but simply serve as a lift hill transporting it to another level.” Vizcarra, too, expects the decision to be appealed.

If President Trump is able to replace the late Justice Ruth Bader Ginsburg on the nation's highest bench, he may stymie climate action for generations to come. Legal experts say that the addition of a sixth conservative justice to the court could lock in opposition to expansive readings of the Clean Air Act that encompass greenhouse gas emissions or trigger a reexamination of the landmark 2007 climate case Massachusetts v. EPA. In either case, court watchers say, the outcome doesn't bode well for the future of climate regulation. "Climate change is a crisis, and we really need all the tools we can get, and some of them are probably not going to be there," said Dan Farber, a law professor at the University of California, Berkeley. "If Trump is able to fill this vacancy, there'll be at least five conservative votes for at least 20 years, and we don't know what ... new doctrines that are not now on the horizon that could really weaken the power of the government to deal with climate change," he said. The Trump administration has made environmental deregulation a cornerstone of its agenda for the last four years, rolling out major changes to rules including emissions standards for automobiles and power plants. Green groups have lambasted the changes as violations of federal environmental and administrative law, which require reasoned rulemaking. But a conservative Supreme Court majority that favors curbing agency powers could limit oversight of emissions without even touching Massachusetts v. EPA, which said the government can regulate carbon dioxide and other greenhouse gases as "air pollutants" under the Clean Air Act, said Hana Vizcarra, staff attorney at Harvard Law School's Environmental and Energy Law Program. "EPA has been reconsidering their own interpretations of the law in order to limit their own authority," she said. "That's something that this more conservative court may be more inclined to agree with them about, for example, the scope of the Clean Air Act as a much more limited scope that would not allow for the latitude to really take aggressive action against climate change."