Jody Freeman

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.”

How could constitutional scholar and Harvard Law School professor Laurence Tribe's involvement in last week's U.S. Court of Appeals for the District of Columbia Circuit hearing on the Clean Power Plan affect the future of the rule? During today's OnPoint, Richard Lazarus and Jody Freeman, professors at Harvard Law, explain why they believe the government came out ahead during last week's federal court hearing. They also rebut Tribe's arguments against the constitutionality of the Power Plan.

A federal appeals court panel suggested Thursday that it may be too early for a court challenge to an Obama administration proposal to cut carbon emissions from U.S. power plants. The case against the Environmental Protection Agency, up for oral argument at the U.S. Circuit Court of Appeals for the District of Columbia Circuit, is the first test of how well the central component of President Barack Obama’s climate agenda can withstand legal scrutiny. ...“If it winds up that the court for whatever reason stops EPA, that will be a very significant blow to the president’s agenda,” said Jody Freeman, a Harvard law professor and former climate adviser in the White House during Mr. Obama’s first term as president.

Coal-mining companies Peabody Energy and Murray Energy have sued to block the Environmental Protection Agency from finalizing its Clean Power Plan, the Obama administration’s broadest plan to reduce carbon-dioxide emissions from power plants. Today lawyers present oral arguments in the federal Court of Appeals for the District of Columbia. In general, the law favors the EPA, according to Harvard law professor Jody Freeman, a former attorney for the Obama White House who wrote the book on climate change and U.S. law, published by the American Bar Association. If the court allows the case to move forward, "I would be very surprised," she says. "Now, of course, look: Courts sometimes do unusual things." A decision against the EPA—  even if reversed later— would mean delay, which could be costly to President Obama, who has a tight timeline.  

President Obama’s most far-reaching regulation to slow climate change will have its first day in court on Thursday, the beginning of what is expected to be a multiyear legal battle over the policy that Mr. Obama hopes to leave as his signature environmental achievement. ... Among the lawyers arguing on behalf of the coal companies is Laurence H. Tribe, a renowned Harvard scholar of constitutional law, who was also a mentor to Mr. Obama when he attended law school. Republicans who opposed the rule have cheered Mr. Tribe’s role in the case. Legal experts say it is also possible that the judges could throw the case out, since the rule has only been proposed and thus contains language that could change when released in the final form. “Is industry right that the agency lacks the authority to regulate? The challenge is extremely unusual, since the rule is proposed, and not final,” said Jody Freeman, the director of Harvard University’s environmental law program and a former senior counselor to Mr. Obama. “For a court to entertain that would go against decades and decades of precedent.”  

The environmental case being argued on Thursday in a federal appeals court in Washington is equal parts legal freak show and serious legal business. On the serious side, it is the latest attempt by fossil-fuel interests to embalm the Environmental Protection Agency and the Obama administration's climate plan. But it is the legal sideshow orchestrated by constitutional scholar Laurence Tribe of Harvard that is unsettling to many environmental lawyers. ... Jody Freeman, another Harvard law professor, called the challenge’s timing "extremely unusual," and Harvard’s Richard Lazarus, who called the legislative history of the disputed clauses in the law "beyond novel" and "really bizarre." Both professors strongly disagree with Tribe’s arguments.  

Laurence H. Tribe, the highly regarded liberal scholar of constitutional law, still speaks of President Obama as a proud teacher would of a star student. “He was one of the most amazing research assistants I’ve ever had,” Mr. Tribe said in a recent interview. Mr. Obama worked for him at Harvard Law School, where Mr. Tribe has taught for four decades...Which is why so many in the Obama administration and at Harvard are bewildered and angry that Mr. Tribe, who argued on behalf of Al Gore in the 2000 Bush v. Gore Supreme Court case, has emerged as the leading legal opponent of Mr. Obama’s ambitious efforts to fight global warming...“The administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless,” Jody Freeman, director of the environmental law program at Harvard Law School, and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe’s brief on the Harvard Law School website.