Joseph Goffman

Paul Farrell has spent his career tackling one of the state’s most intractable environmental problems — dirty air — clocking 27 years at the state Department of Energy and Environmental Protection alone, the last two as director of air planning. So when Farrell says, “I think the environmental stakes of the upcoming election are as significant as I’ve ever seen in my career,” he knows what he’s talking about. To be clear, the state’s battle with the Trump administration isn’t its first but, as Farrell points out, it’s one for the books. “I’m tracking right now somewhere in the neighborhood of 90 different environmental actions EPA has taken in different areas,” Farrell said. “Without a doubt, they’re all weakening some standards in some form or fashion.” And that’s just air quality issues. In nearly four years, the Trump administration has endeavored to roll back some 100 environmental regulations and policies as documented by The New York Times from databases at Harvard University, Columbia University and others. Then there are a hefty number of new regulations and policies. And let’s not forget the court actions...Joseph Goffman, executive director of the Environmental and Energy Law Program at Harvard, who has also served in numerous environmental roles in government, called the Trump administration approach to weakening environmental rules “horrifying.” “Whenever it does a rule that weakens pollution standards, it goes the route of articulating a new legal theory that has the effect of restricting EPA’s authority at the threshold,” he said. “They’re trying to create a legacy for their successor of an EPA and a Clean Air Act that are much less powerful as toolboxes for dealing with air pollution and climate change.” Such concerns have given rise to speculation about whether a second Trump administration would go after some of the biggest bedrocks, not just of environmental law, but also of administrative law... “The effect of the Trump rollbacks of climate regulation is that we will have lost time and we have lost another increment of climate stability that we will not be able to recover,” Goffman said, noting the greenhouse gas emissions of the Trump era so far will remain in the atmosphere for a long time. “The five years of emissions that we will have to see – there’s no way to offset them. There’s no way to reel them back.”

Cherise Harris noticed a change in her eldest daughter soon after the family moved a block away from a 132-year-old coal-fired power plant in Painesville, Ohio. The teen’s asthma attacks occurred more frequently, Harris said, and she started carrying an inhaler with her at all times. The family didn’t know it at the time, but Painesville’s municipal-owned plant emits nitrogen oxide and sulfur dioxide – two pollutants that the American Lung Association says inflames air passages, causing shortness of breath, chest tightness, pain and wheezing...Under President Donald Trump's rule, the Painesville plant – and nearly 200 other coal-powered electric utilities like it – can emit more such pollutants, according to the U.S. Environmental Protection Agency’s own projections. The rule is one of nearly 100 environmental rollbacks the Trump administration has pursued over the past four years to loosen regulations on everything from air and water quality to wildlife...The void of federal regulations has left some states, which are already in the midst of declining revenues due to the coronavirus pandemic, trying to maintain pre-Trump standards. “The obvious thing (the rules) do is weaken pollution standards, or weaken environmental protections," said Joseph Goffman, a former assistant administrator at the EPA and now the executive director of the Environmental and Energy Law Program at Harvard University. "As they go into effect, the public is exposed to more pollution, more environmental damage, more emissions of greenhouse gases, than they otherwise would be exposed to thanks to these rules.” “But these rules do something else," Goffman said – what the administration really wants is to undo the law...At the same time, EPA's authority has become restricted and limited for the first time in decades since landmark environmental laws were enacted, according to more than a dozen experts and former EPA staff members interviewed for this story. With the rule changes, the “interruption of progress represents a loss of time that will never be recovered," Goffman said. "Time is of the essence, in terms of dealing with climate change.”

Environmentalists are sounding the alarm over Judge Amy Coney Barrett’s comments this week casting doubt on the science of climate change, saying her remarks should disqualify her from sitting on the Supreme Court. During two days of questioning at her Senate confirmation hearing, Barrett called climate change a “contentious matter of public debate” and said she didn’t think her “views on global warming or climate change are relevant to the job I would do as a judge.” Earlier, she told the Senate Judiciary Committee she did not have “firm views” on climate change. Her comments sent ripples through the scientific community given the overwhelming evidence of human-driven climate change...Joseph Goffman, executive director of Harvard Law’s Environmental and Energy Law Program, warned that if the clean energy rule case made it to the Supreme Court, industry briefings on the power plant rule could lead to questions on a court precedent that established the EPA’s authority to regulate greenhouse gas emissions. “If the court decides to take up again the fundamental question that was decided in Massachusetts v. EPA, that’s where you would start to worry about her professed doubts about the science of climate change,” added Goffman, who also served as an EPA lawyer during the Obama administration. However, he said Barrett’s views on climate change wouldn’t necessarily mean she would rule to overturn climate or emissions-related cases; whether she feels an obligation to continue with past precedent would be another major factor. “If the premise of the issue was that human-caused climate change was an established fact, I think she would be as much likely to be bound by precedent...as she would by her own views of science,” he said, adding that the “specific legal context” of the issues would also be important determinants.

EPA will make a high-stakes courtroom argument today in favor of a more restrictive view of the federal government's authority to control greenhouse gas emissions from power plants. The agency is coming before the U.S. Court of Appeals for the District of Columbia Circuit this morning in a long-anticipated hearing to defend the Trump administration's move last year to undo President Obama's landmark 2015 Clean Power Plan (CPP) and replace it with the Affordable Clean Energy (ACE) rule. EPA claims it can only take regulatory action that can be applied directly to coal-fired power plants, rather than take a systemwide approach championed by the agency under Obama... "What really heightens the risk for the government is that you have two judges on the panel that heard not just the agency making a different argument, but — even if in the end they didn't agree with the 2016 version of the agency's argument — they certainly spent a lot of time themselves examining the play in the joints [of the statute]," said Joe Goffman, executive director of the Environmental & Energy Law Program at Harvard University Law School and a key architect of the CPP. "That 4-year-old experience, I would argue, conditioned any judges who participated in that oral argument to see the language in dispute now as being more flexible than the EPA is now insisting that it is," he added.

A three-judge panel appeared divided Thursday on President Trump’s effort to repeal his predecessor’s regulations on planet-warming emissions from the power sector and replace them with far weaker controls. The United States Court of Appeals for the District of Columbiapanel, with two judges named by President Barack Obama and one by President Trump, could well agree to block the Trump administration’s plan, but the issue is almost sure to reach the Supreme Court if Mr. Trump is re-elected. Even if Mr. Trump loses next month, the arguments by the Environmental Protection Agency laid the groundwork for a protracted legal war over future administrations’ ability to cut the pollution responsible for climate change from the power sector, the country’s second largest source of greenhouse gas emissions... “The Trump administration has really taken a go-for-broke approach,” said Joseph Goffman, executive director of Harvard University Law School’s Environmental and Energy Law Program and a former E.P.A. official under President Barack Obama. If the administration’s arguments prevail, he said, “Then they’ve really advanced a broader project that the Trump administration has been pursuing to not only repeal individual rules, but to narrow the foundation of the federal government in doing any kind of regulation.”

The confirmation of Amy Coney Barrett to the Supreme Court could make it harder for future administrations to adapt laws that have been on the books for decades to meet emerging challenges such as climate change. That’s because Barrett’s confirmation would strengthen a conservative bloc of justices who take a narrow view of federal agency power -- potentially spelling doom for efforts to write regulations to thwart greenhouse gas emissions and promote environmental justice. The prospect is driving a wave of opposition to Barrett from environmental groups, which have joined abortion rights advocates and gun control supporters in vigorously fighting the appeals court judge’s nomination to replace the late Justice Ruth Bader Ginsburg on the high court...Barrett’s three-year-tenure as a judge on the 7th Circuit Court of Appeals provides a limited view of her approach to federal regulation and environmental policy. And the previous opinions of Supreme Court nominees are not always a reliable indicator of how justices perform once installed on the high court. Still, legal experts say Barrett’s writings and rulings show her to be a textualist in the mold of the justice she once clerked for, the late Antonin Scalia -- someone who favors a strict reading of the text of federal statutes. A Supreme Court that’s more skeptical of agency authority could look kindly on Trump administration rewrites of federal rules limiting the federal government’s reach when it comes to clean water oversight and required environmental analysis. With Barrett’s confirmation, the court is more likely to “embrace those more self-limited interpretations,” said Joe Goffman, executive director of Harvard Law School’s Environmental and Energy Law Program.

Biden’s climate plan lays out actions he would take on Day One like implementing “aggressive” methane pollution limits from the oil and gas sector and developing “rigorous” fuel economy standards. Environmental advocates say the former vice president should target rules that have the biggest effects on climate change and those that are most harmful to marginalized communities. Yet because of complexities in the rulemaking process — along with structural changes implemented by the Trump administration — undoing even just some of Trump’s environmental rollbacks could take years...If a Biden administration must rely on the rulemaking process to undo Trump’s actions, it could set up a long battle and possible court challenges. Joseph Goffman, an Obama administration Environmental Protection Agency lawyer, said the rulemaking process usually takes 18 to 36 months. Goffman, now the executive director of Harvard Law’s Environmental and Energy Law Program, said it may be slightly quicker to undo rules that are still facing court challenges when Biden takes office since the new administration can choose not to defend them. However, he said, Biden administration rules could get tied up or halted in court, meaning implementation could take even longer. The Trump administration has taken or is in the process of carrying out changes that could further hamstring a Biden administration. It is changing how the benefits of emissions reductions are calculated, and it has proposed a rule aimed at changing what scientific studies are considered in rulemaking. “Some of these changes would require the successor administration to have to do more homework,” Goffman said.  “A lot of these changes would not ultimately stop a Democratic, pro-environment administration from taking the actions it wanted to take,” he said, though he acknowledged it would make it “more challenging.”

President Trump might not win the November election, but he could still strip his opponent, Joe Biden, of a dominant tool to limit greenhouse gases. The Supreme Court and its reshaping by Trump, who is verging on his third appointment of an anti-regulatory justice, would be a warning to Biden to rely less on the Clean Air Act to reduce emissions of carbon dioxide and other gases. Expansive readings of the landmark environmental law — like the one EPA used to regulate the power sector under President Obama — are unlikely to pass muster with the court's likely 6-3 conservative majority. That would be a problem for former Vice President Biden, who has offered the most ambitious climate change platform in the history of U.S. presidential elections...Joseph Goffman, executive director of Harvard University Law School's Environmental and Energy Law Program and a former EPA official under Obama, said Biden's environment agency would be forced to write legally conservative rules that nonetheless aim for aggressive emissions reductions. "If eventually it is challenged in court, the challenge won't be about whether the agency had too expansive an interpretation of the law," he said. "But would focus on technology issues where I think even a conservative judiciary would be likely to defer to the agency." Goffman, who helped oversee the development of the Clean Power Plan, said it was too early to guess what ambitious inside-the-fence-line regulations would look like. "But it's a little easier to speculate that the agency would look there first rather than to something that would be perceived by the court as an overly creative reading of the statutory language," he said.

The confirmation of Amy Coney Barrett to the U.S. Supreme Court would produce a 6-3 conservative majority that could have far-reaching implications for federal energy and climate policy, according to several legal experts. Barrett, 48, did not establish a significant environmental track record from her current seat on the U.S. Court of Appeals for the 7th Circuit before being nominated Sept. 26 to fill the open Supreme Court seat created by the recent death of Justice Ruth Bader Ginsburg. As a former law clerk for the late Justice Antonin Scalia, however, Barrett adopted the conservative icon's strict reading of the U.S. Constitution known as originalism and advanced by the Federalist Society, a group dedicated to confirming originalist judges. Several legal experts said that view of the law, which aims to follow closely the original understandings and expectations of the Constitution’s drafters and ratifiers, could make the conservative-tilting high court even less inclined to grant federal agencies like the U.S. Environmental Protection Agency deference in regulating planet-warming greenhouse gases...And with the retirement in 2018 of Justice Anthony Kennedy and the addition of his replacement, Justice Brett Kavanaugh, the court no longer has the same majority that produced the 5-4 decision in Massachusetts. "You could leave Massachusetts v. EPA untouched, but you could drain it of its efficacy by interpreting away the other authorities within the Clean Air Act to address CO2 in any kind of meaningful way," said Joe Goffman, former general counsel in the Obama EPA's Office of Air and Radiation. Goffman said the addition of another conservative justice to the Supreme Court could have major consequences if it eventually decides Clean Air Act legal challenges dealing with the EPA's authority to regulate methane from oil and gas facilities and California's long-held waiver authority to set its own tailpipe pollution standards. "In both cases, they overturned years and decades of the agency's own precedents," Goffman said in an interview. "That means that to the extent it is potentially a jump ball as to what the courts are going to do, you really need to have as many judges that, let's say signed up for the Federalist Society worldview, on the bench in order to increase your chances of winning what could otherwise be a tough challenge."

EPA chief Andrew Wheeler boasted Monday the Trump administration has done more than any other to clean up the environment, calling the agency’s record of progress “incontrovertible.” But his predecessors and former officials at the agency say any environmental gains have come in spite of Trump’s policy making -- not because of it. The sparring comes as both President Donald Trump and Democratic challenger Joe Biden seek to woo voters concerned about the environment. “We have done more in the first four years of the Trump administration to improve the environment than probably any administration except perhaps during the very first years of EPA,” Wheeler, administrator of the Environmental Protection Agency, said in a speech Monday. “It is incontrovertible that today the environment is in better shape under President Trump than we found it.” Wheeler highlighted a 15% decline in U.S. energy-related emissions of carbon dioxide since 2005, saying the foregone greenhouse gas emissions out pace those of Britain, France, Germany, Italy and Canada combined -- and come even as China’s emissions have surged 50%. Wheeler also cited agency moves to clean up toxic Superfund sites and clear a backlog of unapproved state plans for combating air pollution as well as congressional spending on U.S. drinking water infrastructure...Former EPA leaders have spent weeks warning the opposite is true, with six former chiefs -- including those serving under Republican presidents -- outlining a blueprint for a post-election “reset” of the agency last month. “EPA Administrator Wheeler has been unrelenting in his efforts to defy science and deny the agency’s obligation to protect public health and the environment from the myriad harms of air and water pollution,” said Joe Goffman, a former EPA associate assistant administrator who is now an executive director of Harvard University’s Environmental and Energy Law Program. Recent reductions in pollution “are occurring as a result of regulations and investments put in place by the Obama administration, and in spite of the Trump EPA’s continual pursuit of deregulation,” Goffman added.

The Trump administration on Thursday rolled back regulations aimed at reducing emissions of the potent greenhouse gas methane from oil and gas operations, its latest move to unwind environmental rules ahead of November’s presidential election. During a visit to election swing state Pennsylvania, U.S. Environmental Protection Agency Administrator Andrew Wheeler formally rescinded 2016 Obama administration limits on oil and gas industry emissions of methane, a move criticized by environmentalists when initially proposed last August. Wheeler said in Pittsburgh that new rules would save $100 million a year between 2021 and 2030. The rules will “fulfill President (Donald) Trump’s promise to cut burdensome and ineffective regulations for our domestic energy industry,” he said. Methane is the main component of natural gas. It is a more potent greenhouse gas than carbon dioxide but does not remain in the atmosphere as long...In addition to the rollbacks, the EPA also set up hurdles for a future administration to regulate methane by requiring the agency to make a finding that methane contributes significantly to air pollution before proposing new requirements. Joe Goffman, former EPA senior counsel and director at Harvard’s Environmental and Energy Law Program, said reducing methane from oil and gas is necessary to combat climate change. “The purpose of this rule is simply to strew baseless legal obstacles across that path, ensuring that after Trump and Wheeler are finally gone, their successors will have to struggle to achieve urgently needed methane reductions,” he said.

Environmental regulation is shaping up as a defining issue in the presidential race, with President Trump doubling down on his bid to ratchet back government oversight and former Vice President Joe Biden promising to reverse Mr. Trump’s regulatory rollbacks. The rivals this week outlined diametrically opposed views. Mr. Trump ordered a streamlining of environmental reviews and said he would keep shrinking the reach of government to help business. Mr. Biden, the presumptive Democratic nominee, released a $2 trillion clean-energy plan he said would spur job growth through investments in new technology...Shortly after taking office, Mr. Trump also issued a hiring freeze designed to starve agencies through attrition. The Occupational Safety and Health Administration, which investigates and regulates workplaces for health and safety issues, has the lowest number of inspectors in more than four decades and has seen inspection tallies plummet. The Environmental Protection Agency has seen similar decreases in inspections when compared with the Obama era, according to government reports. “The administration came into office with an unnervingly good understanding of how the machinery of regulation works and they did a pretty effective job of sabotaging it,” said Joe Goffman, executive director of the Environmental & Energy Law Program at Harvard Law School. The approach will make it tougher for a new administration to carry out its objectives.

On Wednesday, President Trump achieved a longstanding goal in weakening environmental protection: The administration significantly narrowed the 50-year-old National Environmental Policy Act (NEPA), a law that requires the government to study the impact of federal projects on the communities and wild areas around them. By skipping steps and shortening deadlines, these changes help to fast-track fossil fuel infrastructure like pipelines and highways, a move that leaves out the voices of poor neighborhoods and people of color on the pollution in their communities...Twice a year, the administration publishes a Unified Regulatory Agenda that details its plans for new regulations and rollbacks. The experts who keep track of environmental rollbacks for Harvard’s Regulatory Tracker noticed an exceptionally long list in the recently updated agenda from early July. It shows 317 items  in proposed or final stages lined up for both the Department of Interior and Environmental Protection Agency. Of those 317, the rules in final stages are most important to watch, because they close enough to the finish line that Trump could conceivably rush them out the door before January if he loses the election. There are 64 EPA rules and 74 Interior rules in the final stage, according to the same list, slightly higher than the EPA and Interior had planned for the fall. “If they meet their schedule, virtually every big ticket item will be across the finish line,” says Harvard University’s Joseph Goffman, who was a senior clean air attorney under the Obama EPA... “If that happens, if there ever is a Democratic administration coming in that has any kind of ambitious regulatory agenda,” Goffman says, “they’re going to have to overcome whatever of those restrictive legal interpretations that were upheld by the courts.”

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.”

A landmark Supreme Court decision this week that affirmed protections for lesbian, gay, bisexual and transgender employees in the workplace could provide powerful ammunition for climate litigators. In a 6-3 opinion Monday, Justice Neil Gorsuch wrote that Title VII of the Civil Rights Act protects "all persons" from discrimination based on sex, including sexual orientation and gender identity. Employees, the court found, can therefore not be fired from their jobs simply for being gay or transgender. The case, Bostock v. Clayton County, Ga., could serve as key precedent for lawyers pushing for more stringent regulation of greenhouse gases under the Clean Air Act...Gorsuch's decision in Bostock follows a similar logic path to the opinion in the watershed climate case Massachusetts v. EPA, said Joe Goffman, executive director of Harvard University's environmental law program. In the 2004 case, the Supreme Court acknowledged that Congress crafted the Clean Air Act with "unknown unknowns" in mind and said that the plain text of the statute left room for EPA to make decisions, such as whether to regulate greenhouse gas emissions as air pollutants, based on new scientific understanding. Something similar happened in Gorsuch's reading of the Civil Rights Act, said Goffman, a former EPA official. "The language of the statute was crafted in a way so that it could accommodate situations that were not necessarily anticipated by Congress at the time the language was crafted, but which the statue could still cover as, in this case, society's understanding of the issue evolved," Goffman said.

President Trump instructed federal agencies yesterday to search for regulations they could suspend or kill in hopes of jolting the U.S. economy out of its pandemic stupor. "The virus has attacked our nation's economy as well as its health," the president proclaimed in an executive order that directs agency heads to look for rules "that may inhibit economic recovery." The order permits rules to be suspended temporarily or permanently to aid economic activity and job creation. Trump signed the order at a Cabinet meeting at the White House yesterday afternoon. "We're fighting for the livelihoods of American workers, and we must continue to cut through every piece of red tape that stands in our way," he said at the meeting. Under Trump, EPA has rolled back numerous regulations for air, water and chemicals in the name of streamlining them, and it has proposed to do more. Myron Ebell, who led Trump's EPA transition team in 2016, told E+E News yesterday that the agency had already consulted with the White House on possible rules to freeze under this order...EPA Administrator Andrew Wheeler attended yesterday's Cabinet meeting. A spokesman said the agency will "review the final [executive order] and work to assess which EPA regulations might be available to streamline in order to achieve the goals outlined in the EO." The agency did not immediately say what regulations might be candidates for suspension. Joe Goffman, former chief counsel for EPA's air office under Obama, said in an email to E+E News last night that the agency's obligations and authorities are defined by statutes like the Clean Air Act and Clean Water Act, "not by President Trump's executive orders, which cannot override environmental statutes or substitute rhetorical goals like 'streamlining' for statutory mandates." "Streamlining or suspending rules is governed by these requirements and must be done via the rule-making process, which requires EPA to give persuasive reasons — on the merits — for its actions," he said. Goffman added that public health standards and pollution controls are prerequisites for economic recovery, not obstacles to it.

Former Vice President Joe Biden's proposal for a Cabinet-level climate change secretary is getting mixed reviews from veterans of past administrations. Their question is this: Will it help or hurt efforts to deliver aggressive action on warming? The presumptive Democratic nominee said earlier this month at a virtual campaign fundraiser that if elected, he would consider creating three Cabinet positions, including one on climate that "goes beyond EPA." It would be the first time the official responsible for climate change policy held Cabinet-level status. The move could reshuffle — and potentially complicate — the chain of command related to environmental policy. Most domestic climate policy is now under the purview of the EPA administrator, who is not a Cabinet member though is generally treated as one...Joseph Goffman, who served as EPA's top lawyer on air and climate under Obama, said that besides being barred from issuing regulations, a new Cabinet official also couldn't redirect money or make infrastructure investments approved by Congress for other agencies... "It's really easy to create high-profile positions occupied by high-profile powerhouse people," said Goffman. "But if they're disconnected from the actual resources of the government that you need to bring to bear to produce results, then you're not going to have a particularly effective climate strategy and you're not really going to be able to produce effective climate policies." Goffman said Biden should focus on using his existing authorities to tackle climate change, as Obama did in his second term.

The U.S. Environmental Protection Agency opened a Pandora's box for utilities with an about-face on the justification underpinning an Obama-era rule limiting coal-fired power plants' mercury emissions, including the potential that ratepayers will try to claw back what they paid for utilities to comply with the rule. Experts say that at best, the EPA's finalized cost-benefit analysis of its Mercury and Air Toxics Standards rule is an empty gesture to utilities. The EPA said it's not "appropriate or necessary" to regulate hazardous air pollutants from coal and oil-fired plants under Section 112 of the Clean Air Act, but the rule remains in place and utilities have already spent billions to comply with it. At worst, the EPA's move could spark renewed legal challenges to overturn the MATS rule in its entirety...Experts say the EPA could have really cut the legs out from under the MATS rule by also removing power plants from the list of pollution source categories subject to regulation under Section 112, but ultimately decided not to. "Although there is still some chance that the coal industry will challenge the standards on the grounds that the appropriate and necessary finding is gone, their prospects for success are dimmer now," said Joseph Goffman, an Obama-era EPA official who is now the executive director of Harvard Law School's Environmental and Energy Law Program. Still, if a court were to enjoin the MATS rule, utilities might not only have spent billions of dollars on pollution controls in vain, but could also face attempts from consumer groups to convince state utility regulators that utilities can't recover the costs of installing those pollution controls from ratepayers.