Jody Freeman

Environmental law likely won't get the same attention as abortion or health care at next week's Senate hearings for Supreme Court nominee Amy Coney Barrett. But her confirmation, tilting the already-conservative court even further to the right, could have a major impact on the government's ability to address climate change. Nearly all of President Trump's climate rollbacks have been challenged, and several are likely headed to the high court. And some conservative allies with ties to the fossil fuel industry say they'd like to relitigate a key decision that underpins climate regulations. It's difficult to predict how Barrett would rule on specific cases. Environmental law was not her focus as a professor, and not something she dealt with a lot during her time on the U.S. Court of Appeals for the Seventh Circuit...Barrett's judicial philosophy shows skepticism of government and favors deregulation over regulation, according to Jody Freeman, who directs the Environmental and Energy Law Program at Harvard Law School and also served in the Obama administration. "I think, generally speaking, it's going to be a corporate court — good for business, good for corporations," says Freeman. Barrett is skeptical of federal agencies stretching their authority under laws where Congress hasn't given them clear direction, but Freeman says agencies need flexibility. "Even when Congress passes new laws there are always ambiguities," she says. "There always is new science, new understandings, new risks, new problems, new data. And it's impossible to specify each and every small decision that the agencies make."

Trump's nomination of Amy Coney Barrett, a Circuit Court judge with strong support from conservatives, could spell trouble for landmark judicial holdings about climate change, Pro's Alex Guillén reports. Barrett is considered an "originalist" in the mold of late Justice Antonin Scalia, for whom she clerked in the late 1990s. She has long advocated for the Supreme Court to show more flexibility in overturning past precedents. That could apply to the high court's 2007 ruling in Massachusetts v. EPA that said the Clean Air Act gave EPA the authority to regulate greenhouse gases, Alex reports. At least two justices still on the court have signaled interest in revisiting the climate ruling — Justices Samuel Alito and Clarence Thomas — and other members of the court's conservative wing may also be sympathetic to arguments to reconsider the decision. With a more conservative judge such as Barrett, the court could weaken Massachusetts without overturning it, said Jody Freeman, director of Harvard Law School's Environmental and Energy Law Program and a former Obama White House adviser. That could include "interpreting provisions to require additional cost benefit analysis, taking a limited approach to the 'co-benefits' that come with climate rules, and otherwise making it harder for the agency to regulate greenhouse gases and other pollution," she said in an email. No case has yet advanced far enough for a court to take a position on the scope of EPA’s authority, but if Trump is reelected, that could provide such an opening.

With Judge Amy Coney Barrett poised to become the sixth Republican-nominated justice on the nation’s highest bench, environmental law experts see her influence tipping the scales on energy and climate rules. President Trump tapped Barrett on Saturday, and Trump—with the help of a Republican-led Senate—is intent on swiftly filling the position left by the late Justice Ruth Bader Ginsburg, who was nominated in 1993 by President Clinton, a Democrat (Greenwire, Sept. 26). Barrett, who currently serves on the 7th U.S. Circuit Court of Appeals, has a relatively slim record on climate and environmental matters. But if she is confirmed to the high court, Barrett, 48, likely would lock up a conservative coalition there, legal experts said. That bloc could smooth the path for future environmental rollbacks or make it more difficult to expand emissions regulations through a broad reading of statutory authority. “I view Barrett being added to the court as taking it even further in the direction it was already going,” said Jody Freeman, founding director of the Environmental and Energy Law Program at Harvard Law School. The court “was already headed in the direction of [being] much more skeptical of broad efforts to regulate new problems, to interpret statutes that may be older, to deal with new risks,” she added...That momentum could be a boon for Trump’s legacy of relaxing environmental standards, as a conservative high court likely would be more amenable to his viewpoint in legal challenges to those efforts. Trump has pushed to roll back regulations on vehicle, power plant and industry emissions.

It’s a bedrock court case on climate change. Now it has a bull's eye on its back. The death of Ruth Bader Ginsburg may eventually result in a reassessment — or at least, a narrower reading — of the Supreme Court’s first and most important ruling on rising global temperatures. The landmark 2007 decision, called Massachusetts vs. Environmental Protection Agency, gave the federal government the power to regulate greenhouse gas emissions. Now with President Trump poised to add a sixth conservative justice, some conservatives are itching for the high court to take some of that power away. The question is whether the Supreme Court will take up future cases tackling climate change — and how far a more conservative bench will go to chip away at its past decision...Toward the beginning of the George W. Bush administration, Massachusetts led 11 other states in petitioning the EPA to do more to stop global warming. When the agency refused, the states sued to compel it to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act. In a 5-to-4 decision, the high court sided with the states and said greenhouse gases ought to be considered air pollutants if agency scientists determine they are a threat to human health. President Barack Obama’s EPA went on to make that so-called “endangerment finding” in 2009...The court could take other steps, such as reining in the EPA’s jurisdiction or requiring additional cost-benefit analysis from the agency to justify its climate rules, according to Jody Freeman, a scholar of administrative law and environmental law at Harvard. The court, she said, has already “signaled it is open to doing” that.

U.S. Supreme Court Justice Ruth Bader Ginsburg will be best remembered for her fierce support of gender equality and civil rights, but she made her mark on environmental law as well, authoring opinions that established citizens' right to sue polluters under the Clean Water Act and the government's right to regulate cross-state air pollution. Justice Ginsburg wasn't necessarily a leader on the high court in regard to environmental law, but green groups knew that she would be a sympathetic ear and a fairly reliable vote, according to Jody Freeman, a professor at Harvard Law School and director of its Environmental and Energy Law Program. "She appreciated the challenges agencies like EPA face when trying to execute their duties," Freeman said, referring to the U.S. Environmental Protection Agency. "She read statutes with an eye to their purpose, and she respected agency expertise." Timothy Bishop, a partner at Mayer Brown LLP, said that although Justice Ginsburg didn't take the lead on many environmental cases, she reliably recognized the government's right to regulate on environmental issues. He cited Massachusetts v. U.S. Environmental Protection Agency , which established carbon dioxide as a pollutant eligible for federal regulation, and Rapanos v. EPA , in which the court's four liberal justices took a broad view of the government's regulatory authority under the Clean Water Act. "Her environmental record is fairly slim for so long a tenure in the court, and you do not get the impression that she had the passion for environmental issues that, say, Justice [John Paul] Stevens had, compared to her record on civil rights issues, on which her liberal icon status is based," Bishop said Here are three of the most important environmental law opinions Justice Ginsburg authored.

A more conservative Supreme Court gives the Trump administration a greater chance of making its rollbacks of environmental rules last long after the president leaves office. The death of Justice Ruth Bader Ginsburg could have a profound effect on a number of legal challenges brought against President Trump and his deputies now winding their way through lower courts, legal experts say. Court challenges from blue states and green groups involving many issues — everything from whether Utah canyon land can be drilled, to whether oil companies can be held responsible for killing birds in spills, to  if the federal government can take aggressive action to curb climate change — could be impacted. And even if Trump is defeated in November, the loss of the late liberal icon on the court may also give Joe Biden trouble in implementing a plan to combat climate change. “A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection,” said Jody Freeman, director of Harvard Law School’s environmental and energy law program...A Biden administration, along with Democrats in Congress, will need to craft new environmental laws and regulations extra carefully so as not to run afoul of a more conservative Supreme Court, Freeman said. “All of this underscores the need to use executive power smartly and strategically in a legally defensible way in tandem with passing new legislation on climate and energy policy," she said.

A new Supreme Court appointment at the twilight of President Trump's first term could shift how justices respond to regulatory challenges and dull Chief Justice John Roberts' swing vote in cases with important energy and environmental consequences. And if Trump loses in November, it could complicate Biden administration efforts to address climate change and make it tougher to roll back Trump's deregulatory agenda. Court watchers expect Trump's nominee to replace Justice Ruth Bader Ginsburg, who died Friday at age 87, to fall ideologically to Roberts' right. That could alter how the court handles administrative law, which governs federal agency actions and can be a key component of regulatory cases...The White House Council on Environmental Quality's new implementing regulations for a foundational environmental law may also find their way to the Supreme Court. The rules are being challenged in part for allegedly diverging too far from the bedrock National Environmental Policy Act. Conservatives have long challenged how much courts should defer to agency interpretations of NEPA. While Roberts has shown an interest in limiting the scope of that deference — known as Chevron deference — a more conservative justice may want to do away with it entirely, said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. She noted that there has been a "certain instability" in recent major administrative law cases where a single vote could have tilted the outcome. "In many of these big cases, [Roberts] is like a surgeon, wielding the scalpel carefully to achieve his desired outcome, but also doing so carefully to limit collateral damage. He is not looking for upheaval," said Freeman in an email. "A new conservative justice may not be as cautious or as concerned about ripple effects." For example, the high court earlier this year also took aim at independent agencies when it struck down the structure of the Consumer Financial Protection Bureau. With an additional conservative vote, the court might have been persuaded to go further and find that all independent agencies are unconstitutional, said Freeman.

As the coronavirus pandemic continues to wreak havoc worldwide, another looming threat remains on the back burner: the global climate crisis. Climate change has been a hot topic and polarizing issue for decades, with debates over its validity and level of seriousness more political than scientific. But the science is clear: Earth is getting hotter and its inhabitants are largely to blame. The warmer world is already provoking an increased number of extreme weather events, causing negative health impacts and obligating people to flee their homes. Experts say failure to take considerable action will have devastating consequences. What evidence do we have that the world is changing for the worse? What effects are we seeing now in 2020 and what more is predicted? Who and what are the biggest contributors? What is the status of environmental regulations and policies? What more has been proposed? Is there time to reverse concerning trends? What would be the biggest challenges? What’s at risk if we don’t? Guests: Jody Freeman, professor of law and founding director of the Environmental and Energy Law Program at Harvard University; Abrahm Lustgarten, senior environmental reporter for ProPublica; Jason Smerdon, research professor, co-director of the sustainable development undergraduate program and faculty member of the Earth Institute at Columbia University.

CGTN's Sean Callebs spoke with Jody Freeman, Professor of Law and Director of the Environmental and Energy Law Program at Harvard Law School about California's clean truck and other environmental initiatives.

Donald Trump has smashed a lot of environmental china in four years. To name a few instances: he pulled out of the 2015 Paris Agreement (a move that becomes official on July 6, 2021); loosened automotive-mileage and power-plant-emission standards; and sought to eliminate the protected status of the sage grouse, opening up 9 million acres to oil and gas extraction. Reasonable minds may differ on the wisdom of any one of those moves, but no one can deny the unprecedented sweep of Trump’s policies. Data from Harvard Law School’s Environmental and Energy Law Program and Columbia University’s Sabin Center for Climate Change Law show that the President has signed more than 100 administrative rules, Executive Orders and acts of deregulation, 66 of which have gone into effect...It wouldn’t necessarily be easy. The U.S. would not simply be permitted to rejoin the agreement but would have to negotiate its way back in. One way to improve its chances would be for the U.S. to present an even more ambitious greenhouse-gas reduction target than it had before, says Joseph Goffman, the Harvard program’s executive director. That original target for the U.S. was a cut of 26% to 28% below 2005-level carbon emissions by 2025. If Biden agreed to more, he might win the U.S. the favor of the other 196 signatories to the pact, but then he would have to deliver; that’s where the work on the domestic side would begin...If presumptive Democratic presidential nominee Joe Biden defeats Trump in November, what could he do in his own four years to undo the work of the Trump era? “The biggest, flashiest thing would be for Biden to stand up on day one and say the U.S. is recommitting itself to Paris,” says Jody Freeman, director of the Harvard program. “We should make clear we’re going to take back the reins we’ve relinquished.”

Joe Biden has been wooing progressives with a list of green initiatives. But even if Democrats take control of Congress, he might have to rely on executive actions to accomplish some of his goals. The presumptive Democratic nominee for president has a $1.7 trillion climate plan that includes myriad proposals — including new regulations on car fuel efficiency, massive increases in government spending, additional taxes on greenhouse gas emissions and rejoining the Paris Agreement. But experts and advocates say Biden would likely have to adjust some of his expectations if Congress can't help, and he may not be able to achieve, for example, net-zero greenhouse gas emissions by 2050. Still, should he win in November, the former vice president would have a wide range of tools at his disposal to make big changes to climate and environmental policy. "When you've got the agencies of the federal government, and you've got the power to steer and direct and appoint, that's a huge power," said Jody Freeman, who leads the Environmental and Energy Law Program at Harvard Law School and was an environmental policy adviser in the Obama administration. "So I see what Biden could do as quite significant, even though we all think it would be pretty fabulous if Congress could do something," she said...And if Biden doesn't get any help from Congress, he might want to double down on regulations and go even further. "It's not that you have to go find other tools in the executive branch. You have to use the regulatory tools you've got to do more," said Freeman. She argued specifically that Biden could write a new version of the Clean Power Plan far more ambitious than the one the Obama administration put forward in 2015, which would have cut emissions 32% below 2005 levels by 2030. Since then, many coal-fired power plants have been shut down, renewable power has become much cheaper, and the sector's emissions have dropped, showing it's possible to do much more, she said. "You can be ambitious with a new version of the Clean Power Plan because the sector itself has made progress, and the market forces are already driving us in that direction, with the cheap cost of natural gas, the penetration of renewables and the rest," she said.

A key debate on climate change is coming into focus for November's US presidential election. Voting this week in Michigan and several other states has cemented former vice-president Joe Biden’s lead over Bernie Sanders as the person to take on president Donald Trump in November. ... A first step for any future Democratic president would be to rejoin the 2015 Paris climate accord and restore climate rules and regulations that Trump has been busy repealing, says Jody Freeman, an environmental-law specialist at the Harvard Law School in Cambridge, Massachusetts, and a former White House adviser under Obama.

President Trump sees federal environmental regulation as “big government at its absolute worst.” Jody Freeman, Director of the Harvard Law School Environmental and Energy Law Program, joins Ali Velshi to discuss what’s at stake now that President Trump has proposed a complete overhaul of the National Environmental Policy Act.

In case you haven't noticed, California's on fire. And according to scientists and environmentalists, wildfires will only increase in frequency and severity — and not just there. Scenes of elite enclaves aflame in Los Angeles and Sonoma could be a window into what the rest of the country will face in the very near future due to climate change. Yet as California burns, the Trump administration continues to target the state that has served as the nation's leader in implementing ambitious climate change policy...“I think the entire agenda of the Trump administration on climate change is at odds with the reality in California,” said Jody Freeman, the founding director of the Harvard Law School Environmental and Energy Law Program who served as an energy and climate change counselor in the Obama White House. “The federal government is behaving like it’s in a different world than what the state of California is dealing with...Wildfires are raging out of control and California is keenly aware of what they need to do to solve this problem,” Freeman told Power Up, “and then you see the systematic attempt by Trump to dismantle every tool to deal with climate change…There is an element of this that almost seems mean-spirited and intentionally punitive.”

Ariana Grande's voice fills the rented Chrysler Pacifica minivan: “The light is coming to give back everything the darkness stole.” Varshini Prakash, executive director of the Sunrise Movement, bops her head, keeping her hands at ten and two on the wheel. “When did this come out?” she asks Jesse Meisenhelter, fellow Sunriser and her copilot on our 10-hour drive between Louisville and Washington, D.C. “It’s so relevant!” Humming along, Meisenhelter, 25, and Prakash, 26 (the same age as Grande), seem more like carefree coeds than leaders of a self-described “army of young people” touring the country to rally support for the Green New Deal—the polarizing climate resolution presented in February to Congress by Representative Alexandria Ocasio-Cortez and Senator Ed Markey. ... In July, centrist Democrats in the House presented a more moderate plan to curb carbon emissions by 2050 rather than the Green New Deal’s eyebrow-raisingly ambitious goal of 2030. “We are inspired by the energy, activism, and outside mobilizing of the Sunrise Movement and the millions of young people across the country who are using their power to bring about transformational change,” Speaker Pelosi wrote me in an email. “Guided by their voices and the vision and values of our caucus, House Democrats are taking decisive action to defend the people and places we love.” When I speak to Jody Freeman, a professor of environmental law at Harvard University and a former legal counsel in the Obama administration, she tells me that while she admires the ambitiousness of the plan, “I’m not sure that the folks pushing these policies have a pragmatic view of what is possible, given how hard this is politically.”

NPR's David Green talks to law professor Jody Freeman, who is an ex-Obama staffer, about the expectation that the administration will revoke California's ability to set tighter environmental rules.

An op-ed by Jodi Freeman: Auto companies prize certainty in how the government regulates them because of the long timelines involved in designing and manufacturing cars and trucks. Now the Trump administration has upended that certainty by going to extraordinary lengths to roll back Obama-era greenhouse gas and fuel efficiency standards that even much of the industry supports. It’s a senseless exercise of apparent presidential pique. Worse, it threatens to undo what would be the country’s most important climate achievement, the doubling of vehicle fuel efficiency to about 55 miles per gallon by 2025. Those standards all told would have reduced greenhouse gas emissions by six billion metric tons, cutting auto sector emissions in half by 2025, and saved American families more than $1.7 trillion in gas, with an average fuel savings, for instance, of more than $8,000 for a 2025 model vehicle over its average lifetime.

The Trump administration says a deal between California and four carmakers to improve fuel efficiency may be illegal. The Justice Department has also launched a probe to see whether it violates antitrust laws. Together, the moves raise the stakes in a months-long standoff over efforts to weaken a key Obama-era climate rule. ...  All this could set up an "epic" legal battle, says Jody Freeman, who served under the Obama administration and is now at Harvard Law School. She says the EPA under President George W. Bush also rejected California's emissions waiver, but "that hasn't been tested in the courts, so we don't know how it would come out." Freeman also says it is "astonishing" that President Trump is pushing so hard for an aggressive rollback that automakers don't want, when they've made clear they would accept a more moderate compromise.

Jody Freeman comments on hurricanes and climate change policy.