Jody Freeman

Justice John Paul Stevens' landmark decision in Massachusetts v. EPA forced the federal government to address the problem of climate change and unleashed a flood of decarbonization policies, a deluge that the Trump administration is trying to reverse. Justice Stevens, who died Tuesday, penned the 5-4 majority opinion in 2007 that greenhouse gases are air pollutants under the Clean Air Act and subject to U.S. Environmental Protection Agency regulation. Twelve states, led by Massachusetts, along with several cities and environmental groups had sued the EPA seeking to force it to regulate GHGs. The decision is considered one of the most important U.S. environmental law rulings ever made. ... “It showed that Justice Stevens was a consensus builder, somebody who could write an opinion in a way that would attract, not repel, votes,” said Jody Freeman, the founding director of Harvard Law School's Environmental and Energy Law Program and a former Obama energy and climate change counselor. “That's a very important skill for a Supreme Court justice.”

The Trump administration on Wednesday replaced former President Barack Obama’s effort to reduce planet-warming pollution from coal plants with a new rule that would keep plants open longer and undercut progress on reducing carbon emissions. The rule represents the Trump administration’s most direct effort to protect the coal industry. It is also another significant step in dismantling measures aimed at combating global warming, including the rollback of tailpipe emissions standards and the planned withdrawal from the Paris climate agreement...Jody Freeman, a professor of environmental law at Harvard University and a former legal counsel in the Obama administration, said it would be “a blockbuster” if the Trump rule reached the Supreme Court and justices endorsed the administration approach. “It could foreclose a new administration from doing something more ambitious,” she said. “No matter how you slice it, this is a dramatic retrenchment” Ms. Freeman said. “It’s not just that they’re doing very small, modest steps to reduce emissions. It’s that they’re not creating momentum to substitute renewables and substitute natural gas for coal. That’s what the Obama rule was doing, and it had a long-term view to bigger emission cuts over time.”

Jeff Alson was sitting in his apartment in Ann Arbor, Mich., when he felt like he was going to explode. The retired environmental engineer, who worked at the Environmental Protection Agency for 40 years, had just read a letter written by one of his old bosses, agency chief Andrew Wheeler. In it, Wheeler told Congress that EPA career experts had not been cut out of the process of crafting one of the Trump administration's most controversial environmental proposals to date — one that would abandon one of President Barack Obama's signature climate policies. Alson was one of those EPA experts before retiring in April 2018. He was fuming, he later said, because he believed what Wheeler was saying was wrong...California and other states have vowed to challenge the freezing of the fuel-efficiency standards in court once they are finalized. If the EPA's technical staff were cut out of the process, as Alson contends, that may provide fodder for a lawsuit. “The Clean Air Act requires EPA to be 'the decider' for its own rules, so IF it could be clearly shown in the record that EPA relinquished decision-making authority to NHTSA, that could be a problem for EPA in the courts,” Jody Freeman, director of Harvard Law School's Environmental and Energy Law Program, wrote by email.

President Trump's new industry-friendly carbon rule for power plants was greeted with little fanfare among the field of Democrats hoping to run against him. While eight of the two dozen 2020 hopefuls responded negatively to EPA's Affordable Clean Energy rule, most reactions were published by candidates' government offices, and very few explicitly promised to take action against the regulation if they are elected...Jody Freeman, a Harvard Law School environmental law professor who served in the Obama White House, said the subdued responses show how far climate policy has come. "The thinking has moved beyond just reinstating CPP," Freeman said. "Candidates are coming out with bold and ambitious, economywide plans, and they don't feel tethered to the CPP." Freeman argued it would nonetheless behoove candidates to think about what emissions reductions they could accomplish using solely the executive branch's authority, as both the Clean Power Plan and ACE do. "They always do this, they campaign on big, bold plans that require Congress to act," Freeman said of presidential candidates. "Then at some point, they realize that they need to examine their existing authorities like the Clean Air Act to see what can be accomplished there."

President Trump’s move Wednesday to limit the power of states to block oil and gas pipelines is representative of what critics say is his administration’s hypocritical approach to “cooperative federalism.” The Trump administration has rejected former President Barack Obama’s muscular approach of using federal government power to combat climate change — deferring action to states to plan for reducing greenhouse gas emissions in the electricity sector. ... “Instead of pulling up the laggards and unleashing the leader states to do more, Trump is empowering the laggard states while blocking the leaders [like California],” said Jody Freeman, a Harvard Law School professor who served as counselor for energy and climate change in the Obama White House. “It’s a remarkable turnaround.”

Talks between the Trump administration and California over rules requiring automakers to steadily decrease car emissions are no closer to reaching a deal than when they began months ago, setting the stage for a protracted legal battle. ... “I’ve seen a lot of going through the motions,” said Jody Freeman, a Harvard environmental law professor who is not involved in the current talks but worked on the first set of national vehicle emissions standards under President Obama. During those negotiations, Freeman said she required agency staff with technical expertise to be deeply involved.

...In almost two years since taking office, Mr. Trump has denied the scientific reality of climate change and taken aggressive steps that will increase emissions of heat-trapping greenhouse gases — despite unequivocal scientific evidence that those pollutants are warming the planet to dangerous levels...“These are life-extension projects for coal plants,” said Jody Freeman, a Harvard law professor and former counsel to the Obama administration. “It’s a very calculated effort to go in the opposite direction from what’s needed.”

How much economic damage will global warming cause? That’s one of the key questions embedded in the Trump administration’s recent proposals to weaken Obama-era regulations on greenhouse gas emissions from both vehicles and power plants...“Typically, an agency gets some latitude to set standards a bit more or less stringently,” said Jody Freeman, director of the environmental law program at Harvard Law School. “But if you can show the agency to be glaringly wrong in its analysis — they ignore obvious counterarguments, they cherry-pick the data to support their outcome, they make numbers up — you can get a court to strike the standards down.”

Supreme Court nominee Brett Kavanaugh has demonstrated a deep suspicion of government regulation, a pattern aligned with the Trump administration and perhaps best exemplified by his dissent in the case of a killer whale that attacked a SeaWorld trainer...Kavanaugh, as well as some of the Supreme Court's more conservative justices, question a longstanding legal principle dictating that judges defer to agencies' interpretations of vague and open-ended statutes, as long as the interpretations are reasonable. They counter that if there's new problem to solve, Congress should address it with a new law. That would inevitably lead to less regulation, observes Harvard law professor Jody Freeman, who specializes in administrative law and environmental issues. "If you hamstring the agencies and say every time there's a new issue, every time there's a new problem ... you have to go back and get express permission from Congress, that's a way of saying, you don't want the agencies to do very much. Congress doesn't produce much new law now."

The Trump administration rolled out its proposal for gutting former President Barack Obama’s most sweeping climate change regulation Tuesday — a move that could also block any future Democratic president from trying to put it back together....Former Obama White House climate aide Jody Freeman expressed some concern that the court battle to follow could leave EPA with diminished authority to regulate greenhouse gases at all, unless Congress steps in with a new law. “There’s certainly a legal pathway in which a court could lock in such a narrow reading that it would be very problematic for a future administration,” said Freeman, who is now director of Harvard Law School’s environment and energy program. “There’s also a pathway in which a court could uphold what one administration does and leave room for another to change its mind.”

An op-ed by Jody Freeman. The Environmental Protection Agency and Department of Transportation moved Thursday to fulfill President Trump’s promise to undo landmark Obama-era rules requiring automakers to steadily reduce greenhouse gas pollution from cars and trucks and improve fuel efficiency through 2025. Transportation is the largest source of greenhouse gas emissions in the United States, with the biggest share coming from cars and trucks. Yet the government now plans to freeze fuel economy and greenhouse gas standards indefinitely at levels set for 2020, thwarting progress on addressing climate change. To make sure it accomplishes that goal, the Trump administration also wants to strip California of its authority to set stricter greenhouse gas standards for vehicles sold within its borders, which the state is authorized to do under a longstanding provision of the Clean Air Act.

The Trump administration has drafted a plan to freeze fuel-efficiency standards for the nation’s cars and light trucks, reversing the Obama-era push for cleaner vehicles and marking one of President Trump’s most significant regulatory rollbacks to date. As part of the far-reaching proposal expected to be released this week, the White House will also attempt to revoke California’s ability to set stricter tailpipe standards than those of the federal government...“It’s had a transformational impact,” said Jody Freeman, an expert in environmental law and a professor at Harvard Law School. “It was directly responsible for many advancements that make cars better, stronger and more efficient.”

...With the retirement of the Supreme Court Justice Anthony M. Kennedy, who often served as a swing vote on the court, Mr. Trump has nominated a judge to succeed him, Brett Kavanaugh, who is considered more reliably conservative. “They may well feel emboldened by the fact that Kennedy is retired, and they will likely see more conservative justices,” said Jody Freeman, a professor of environmental law at Harvard and a former adviser to President Barack Obama. However, Ms. Freeman noted that previous efforts to pre-empt such state-level authority have failed, a fact that also concerns Mr. Wheeler, according to people familiar with his thinking. “We’ve never seen a state-level waiver being revoked, and it’s not clear how that would work,” Ms. Freeman said.

There’s trouble in Trumpland, and California is caught in the middle..Revoking the waiver “would be unprecedented,” says Jody Freeman, a Harvard law professor. “There have been dozens of waivers that California has gotten over the decades since the 1970s, and [the EPA] has never revoked one.”

Trump administration officials were putting the finishing touches on a strategy to roll back car pollution standards when they received a boost from an unexpected source: the Supreme Court. The announced retirement of Justice Anthony Kennedy, a swing vote on the court, and the plan to replace him with a reliable conservative in Brett Kavanaugh, energized the regulators. They plan to go with the boldest option, including a challenge to California’s ability to set its own limits...Jody Freeman, a Harvard environmental law professor and an architect of the Obama administration’s fuel efficiency pact with California, said it’s not clear how Kavanaugh would view key legal questions around the fuel economy rollback. “I don’t think we have enough of a record on Kavanaugh’s views of state powers and federalism to be confident about how this particular challenge would come out,” she said.

..."I think for all of these rulemakings his judicial philosophy and his temperament is to be skeptical of important, big, far-reaching agency rules, especially if they are interpreting or adapting older stuff in novel ways," said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. "It's all approached with this general skepticism toward overreach and ... He has no problem deciding not to defer [to federal agencies]. He has no difficulty."

...Of the judges who made Trump's shortlist, Kavanaugh was viewed as the most troublesome for environmentalists, said Jody Freeman, the founding director of Harvard's Environmental and Energy Law Program. That reputation might be overblown, she said. "You can't say that you always know the outcome with Brett Kavanaugh," Freeman said. "He's a very serious and very diligent judge, and he's shown himself to be persuadable."