Jody Freeman

An article by Jody Freeman (registration required): In February 2016, the U.S. Supreme Court made an extraordinary decision. It temporarily suspended the implementation of President Barack Obama’s signature climate change initiative—the Clean Power Plan—which requires coal- and gas-fired power plants, the largest source of U.S. carbon pollution, to cut their emissions for the first time. At the Paris climate talks just two months prior, nearly 200 nations pledged to mitigate their greenhouse gas emissions using a variety of domestic policies. Obama’s plan had become a crucial part of the United States’ strategy for meeting its own commitment in Paris: to reduce greenhouse gas emissions by up to 28 percent by 2025, compared to 2005 levels.

Be wary of any promises from Republican presidential candidates to abolish federal entities such as the Environmental Protection Agency and Energy Department, legal scholars told Bloomberg BNA, because they will not come true...“This is just red meat to their supporters, of course, and cannot be unilaterally accomplished,” Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA. “Presidents can ask Congress for skeletal agency budgets, try to stymie or slow agency work or control them and weaken regulation through centralized White House review, but they cannot eliminate agencies or zero out budgets by fiat, which is what these candidates are promising.” ...Laurence Tribe, Harvard Law professor and legal scholar, told Bloomberg BNA in an e-mail that the agency's origins are “legally irrelevant” to whether it could now be abolished. “The fact that an executive order by President Nixon preceded the Acts of Congress constituting the current EPA, delegating regulatory powers to that agency, authorizing its expenditures and appropriating the funds in its budget doesn't make it vulnerable to unilateral presidential abolition,” Tribe said.

Ten research projects driven by faculty collaborators across six Harvard Schools will share over $1 million in the second round of grants awarded by the Climate Change Solutions Fund, an initiative launched last year by President Drew Faust to encourage multidisciplinary research around climate change...This year’s winners are:...Wendy Jacobs and Alma Cohen, Harvard Law School. Jacobs and Cohen will work with existing community organizations to encourage behavior changes that meaningfully reduce greenhouse gas emissions and build social and political support for policies to mitigate climate change...Katherine Konschnik and Jody Freeman, Harvard Law School. Konschnik and Freeman’s project, called Power Shift, will help policymakers, regulators, and stakeholders design a modern legal infrastructure to support 21st-century electricity by creating and supporting a new network of expert communities.

Justice Antonin Scalia, who died unexpectedly Feb. 13 while on vacation at a West Texas resort, authored nearly two dozen majority opinions and a dozen dissents in environmental law cases during his 30 years on the U.S. Supreme Court. ... Richard J. Lazarus, a professor at Harvard Law School, told Bloomberg BNA that Scalia “was probably environmental law’s greatest skeptic,” but not “because he was against environmentalism.” ... Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA that “you could largely predict where Scalia would come out on those cases. He was very consistent that the burden on the larger public to get standing was always going to be greater than for directly regulated entities.”

A few hours after nearly every country in the world adopted the Paris Agreement last December, John Kerry went into enemy territory. Backed by the blinking lights of the Champs-Élysées, the bleary-eyed secretary of state clipped on an earpiece and started fielding questions from Fox News Sunday’s Chris Wallace. One of the main objections American conservatives have to any global climate deal is the fear that other countries will renege, making money off dirty energy while Americans sacrifice to clean the atmosphere like a bunch of chumps...But this week, another branch of government emerged as a threat to the plan. Chief Justice John Roberts, backed by his four fellow Republican appointees on the Supreme Court, barred the Obama administration from taking any steps to implement its plan to reduce carbon pollution from existing power plants until the courts reach a final decision on the plan’s legality...Jody Freeman, a Harvard University law professor who served as White House counselor for energy and climate change under Obama, disagrees. "There’s no argument for irreparable harm," she says. "There is no obligation on the part of the federal government to preserve the market share of the coal industry."

OnPoint with Tom Ashbrook: The Supreme Court hits the brakes on the heart of President Obama’s push to fight global warming. We’ll dig in. Guests: Jody Freeman, founding director of the Harvard Law School Environmental Law and Policy program.

In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants. The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups. But the high court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices...“It’s a stunning development,” Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, said in an email. She added that “the order certainly indicates a high degree of initial judicial skepticism from five justices on the court,” and that the ruling would raise serious questions from nations that signed on to the landmark Paris climate change pact in December.

The Federal Energy Regulatory Commission's recent victory before the U.S. Supreme Court bodes well for the Environmental Protection Agency when the justices eventually consider substantive challenges to the Clean Power Plan, legal analysts told Bloomberg BNA. The court ruled 6-2 that the Federal Power Act unambiguously extends FERC authority to regulate demand response rates in the wholesale energy market (FERC v. Elec. Power Supply Ass'n, 2015 BL 18590 (U.S. 2015); 15 ECR, 1/25/16). Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA that she was surprised both by the margin of victory and that the court so emphatically upheld FERC's demand response rule. “The interesting thing is that an agency took an old law that was written decades ago and which couldn't possibly have anticipated the modern grid, and the agency had to adapt that law to deal with modern policy,” and the court resoundingly upheld those actions, Freeman said.

The U.S. Supreme Court on Monday upheld a major Obama administration electricity-markets regulation that encourages big power users like factories to cut consumption at peak times, rejecting a challenge brought by electric utilities. The court, ruling 6-2, reversed a 2014 decision by the U.S. Court of Appeals for the District of Columbia Circuit to strike down the 2011 Federal Energy Regulatory Commission regulation...Jody Freeman, director of Harvard Law School's environmental law and policy program, called the ruling a "crucial step" toward the Obama administration's goal to reduce carbon emissions that contribute to climate change.

Two Republicans who headed the Environmental Protection Agency (EPA) are backing the Obama administration’s climate change rule for power plants as it faces a federal court challenge. William Ruckelshaus, who was the first EPA administrator under President Richard Nixon and later served in the same position under President Ronald Reagan; and William Reilly, who served under President George H.W. Bush, want to be able to file amicus briefs in the case. The two men support the climate rule, saying in October that “the rule is needed, and the courts we hope will recognize that it is on the right side of history.”...Ruckelshaus and Reilly are being represented by Jody Freeman and Richard Lazarus, two Harvard Law School professors who have written and fought in support of the climate rule.

An epic legal battle is about to begin over President Obama's plan to address climate change, in which the Environmental Protection Agency is putting in place new limits on greenhouse gases from power plants. Critics argue the plan is on shaky legal ground, but the administration says it's prepared to defend the regulations in court...Others say the EPA is likely to prevail on that point. Harvard law professor Jody Freeman, a former legal expert on energy and climate change for the Obama administration, says the final version of the regulations is "far more legally defensible than the draft was." For example, Freeman notes that the draft version set emission targets for entire states instead of specific polluters. "Now, what EPA has done is put the regulatory burden directly on the power plants themselves to cut their pollution," she says. "That's just much more direct, and it aligns better with the Clean Air Act."

Obama's announcement of a final rule to reduce carbon emissions on Monday (03.08.2015) drew international attention to the United States. The administration appears to have responded to a growing desire for politicians to take the fight against climate change more seriously. The American public has been demanding more government action as severe droughts and forest fires ravage the western US...."It's a transformational moment in the US, both in the business sector and in politics," Jody Freeman, founding director of the Harvard Law School Environmental Law and Policy Program, told DW. "The push at the national level is a signal that is going to drive change in the private sector."

An op-ed by Jody Freeman and Richard Lazarus. After releasing the Clean Power Plan this week the Obama administration must shift from offense to defense. The plan, which set the first national limits on carbon pollution from existing coal- and natural gas-fired power plants, faces two significant risks: one legal, the other political. The administration must address them to achieve the plan’s ambitious goal of cutting carbon emissions 32% below 2005 levels in 2030.

An op-ed by Jody Freeman and Kate Konschnik. With the release of President Obama’s Clean Power Plan, a flood of legal challenges will begin. Already, opponents have denounced the new rule limiting carbon pollution as unconstitutional. Behind the rattling sabers, however, there’s a quieter story worth noticing. Many big players in the electric power industry will gain more with the rule in place than if the courts strike it down. In fact, many power companies have worked with the administration to get the best possible deal, and with states to discuss compliance strategies. Given their financial interests, some of these utilities may even wind up helping the government defend the rule.

An op-ed by Jody Freeman. Now that the Obama administration has released the full details of its highly anticipated Clean Power Plan today, industry and state opponents are champing at the bit to challenge it in court...For those handicapping the litigation, however, the government’s odds of success just got a significant boost. A close analysis of the language in the final plan released today suggests that EPA has addressed each of these problems in subtle but significant ways, and the legal battle will now likely be much harder for the challengers.

The issue of climate change played almost no role in the 2012 presidential campaign. President Obama barely mentioned the topic, nor did the Republican nominee, Mitt Romney. It was not raised in a single presidential debate. But as Mr. Obama prepares to leave office, his own aggressive actions on climate change have thrust the issue into the 2016 campaign...However, experts said, a new Republican president could simply stop implementing the regulations. “We’ve had lots of administrations that just stopped rules from previous presidents dead in their tracks — the Reagan administration did that with rules from the Carter administration,” said Jody Freeman, director of Harvard University’s environmental law program and a former counselor to Mr. Obama. “They could delay the rule, or withdraw it indefinitely,” she said. “They’d get sued, but they could drive a delay through a whole first term. It’s a rope-a-dope strategy.”

A commentary by Jody Freeman: Today, the Supreme Court held that federal subsidies to help Americans buy health insurance under the Affordable Care Act are available in every State, whether the States themselves or the Federal government sets up the health care exchanges. This is a major victory for the Obama administration, which had adopted that view of the law in an Internal Revenue Service rule. Unless subsidies are available nationwide, the Act’s scheme does not really work, because insurance would become more, not less expensive, and premiums would soar, undermining the core purpose of the law, which is to insure every American. Yet in finding for the Obama administration, the Court nevertheless struck a blow against the executive branch. The Chief Justice’s majority opinion showed zero deference to the administration’s interpretation of the law. The Court construed the Act for itself.

Here’s a twist for the Obama administration as it awaits a U.S. Supreme Court decision on the biggest environmental rule of its first term: A loss shores up the legal basis of the biggest environmental rule of the second term. The high court is set to decide as soon as Thursday on the 2012 rule by the Environmental Protection Agency that ordered curbs in mercury and other toxic pollutants emitted from coal-fired power plants...To be sure, a loss at the Supreme Court could still set a bad precedent for any future case over the EPA carbon rule, and might not result in a clear repeal of the mercury rule. “The rule in the past has been: Ambiguity favors the agency,” said Jody Freeman, a Harvard law professor who has contended that Tribe’s argument is wrong. “If the court changes its mind, it would signal that it is not in an especially deferential mood, which is not a good sign.”