Media Mentions

Jaha Dukureh was having breakfast with her friends when the idea came to her. She wanted Muslim clerics to deliver a fatwa against child marriage – a religious opinion issued by one or more Islamic legal scholars. It was June 18, the last day of the African Summit on Female Genital Mutilation and Child Marriages in Dakar, Senegal. Dukureh, a Gambian women's rights activist and founder of the nonprofit Safe Hands for Girls, was the chief organizer of the event. It was a challenge to get the summit off the ground. ... Other fatwas have been issued against child marriage. "This is not the first time in Islamic history," says Salma Waheedi, associate director at the Program on Law and Society in the Muslim World at Harvard University.

It can often feel hopeless to be an activist seeking social change on an obscure issue where most people seem opposed or at best indifferent to you. But according to a new book by Professor Cass Sunstein, they shouldn’t despair. Large social changes are often abrupt and unexpected, arising in an environment of seeming public opposition. The Communist Revolution in Russia spread so swiftly it confounded even Lenin. Seventy years later the Soviet Union collapsed just as quickly and unpredictably. In the modern era we have gay marriage, #metoo and the Arab Spring, as well as nativism, Euroskepticism and Hindu nationalism. How can a society that so recently seemed to support the status quo bring about change in years, months, or even weeks?

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.”

Donald Trump’s administration is finalizing plans to roll back the US government’s only direct efforts to curb coal-fired power plant pollution that is heating the planet. Trump’s Environmental Protection Agency will replace an Obama-era climate change rule with a regulation that experts warn could help some of America’s oldest and dirtiest coal plants to keep running...Joe Goffman, a Harvard professor and former EPA general counsel, called EPA’s legal arguments “tortured” and “deceptive”. Goffman said the rule “demonstrates the Trump administration’s determination not only to avoid taking action to address climate change but also to obstruct current and future efforts by states and successors to cut greenhouse gas pollution”.

Environmental Protection Agency Administrator Andrew Wheeler signed a final rule Wednesday that will undo Obama-era climate requirements for coal plants in a way the Trump administration insists will still reduce emissions. The new rule gives individual states wide discretion in deciding whether to require limited efficiency upgrades at individual coal-fired plants. The rule amounts to one of the Trump administration's biggest rollbacks of environmental rules, replacing a landmark Obama-era effort that sought to wean the nation's electrical grid off coal-fired power plants and their climate-damaging pollution...Joseph Goffman, an EPA official under President Barack Obama, said he feared that the Trump administration was trying to set a legal precedent that the Clean Air Act gives the federal government "next to no authority to do anything" about climate-changing emissions from the country's power grid. The Obama rule, adopted in 2015, sought to reshape the country's power system by encouraging utilities to rely less on dirtier-burning coal-fired power plants and more on electricity from natural gas, solar, wind and other lower or no-carbon sources.

The Trump administration on Wednesday issued its long-awaited replacement for former President Barack Obama's most ambitious climate change regulation, rolling back rules in an effort to salvage the declining role of coal in the nation's power supply. Critics charge that the new rule would cripple the fight against climate change — which has emerged as a major issue for Democrats in the 2020 presidential race — and undermine any future White House efforts to use the Environmental Protection Agency to address the problem...Environmentalists and climate scientists say the EPA plan falls far short of the dramatic cuts that are needed in the next several years to avoid the worst effects of a warming planet, rising seas and more destructive weather events. “The final ACE rule will yield virtually no reductions” of carbon dioxide, said Joseph Goffman, the architect of the Obama EPA's Clean Power Plan.

President Donald Trump has made a habit of undoing his predecessor's accomplishments, especially environmental regulations. Now, his EPA has replaced the only rule meant to limit greenhouse gas emissions — and potentially caused the death of thousands of people in the process...“It’s a classic ideological exercise in the sense that this EPA and this administration thinks that government action, and any government action, is the biggest problem,” said Joe Goffman, the executive director of the Environmental and Energy Law Program at Harvard Law School and the former EPA Associate Assistant Administrator for Climate. “That’s the problem that has to be solved, not the problem of climate change.”

The Trump administration on Wednesday finalized its replacement for a cornerstone Obama climate rule, the Clean Power Plan, which placed heavier regulations on coal plants. The replacement, known as the Affordable Clean Energy (ACE) rule, does not require states to reduce overall emissions. Instead, it gives states flexibility to set performance standards and implement efficiency improvements at individual facilities. States will have three years to prepare their plans, which the administration will approve...Joseph Goffman, who also worked at the EPA during the drafting of the Obama-era rule, said that utilities cannot be expected to make decisions with the public interest as their top priority, as the government should.

A who's who of high-powered lawyers appeared in court in 2016 to debate the meaning of "best system of emission reduction," a technical Clean Air Act term that steers EPA's response to climate change. Nearly three years later, the correct interpretation is still an open question, and the stakes have never been higher...Much of the BSER legal debate will arise again in litigation over the Affordable Clean Energy rule."I glanced through the transcripts of the oral arguments in the last couple days and have been trying to think about the atmospherics of the oral argument," said Joe Goffman, an Obama-era EPA official now at Harvard Law School. He noted that even though the Trump administration has replaced the Clean Power Plan and the broad BSER interpretation that went with it, the D.C. Circuit judges were immersed in those arguments in 2016 and will likely keep them in mind as they consider whether the Trump EPA's narrow BSER approach is appropriate. "That's going to, if not legally than psychologically, create a real overhang for the EPA, particularly if they go in front of the court and say that the only possible interpretation of Section 111 and BSER is that it must be applied exclusively within the fence line," he said.

The Trump administration has lauded its Clean Power Plan replacement rule as a more legally defensible option for regulating greenhouse gas emissions from power plants. An…

NPR's Rachel Martin talks to Joseph Goffman, of the Environmental & Energy Law Program at Harvard, about the end of the Clean Power Plan, which he worked on in the Obama administration...MARTIN: Is the director of the EPA, Andrew Wheeler, right? Do fossil fuels still occupy a necessary place in America's energy landscape? GOFFMAN: They occupy a place within a large, diverse and flexible electric grid. They can be - or should be - and to some - to a large extent, are being paired with much cleaner energy sources. MARTIN: So what is your response to this decision? You had to have seen this coming. GOFFMAN: Yes. I think - we did see it coming. I think there are multiple responses. First, this is pretty devastating in terms of its impact on climate change policy because what the EPA did yesterday was really two things.

Including environmental, social and governance considerations in investment decisions is becoming of paramount importance for the fund management industry. Moreover, those principles may be coming into force in asset allocation even faster than previously thought...Legally, trustees “must consider only the interests of the beneficiary,” Max Schanzenbach of Northwestern University and Robert Sitkoff of Harvard Law School wrote. That would bar a fund manager motivated purely by ethical considerations from allowing ESG concerns to steer investment decisions. If, however, the trustee is convinced that pursuing such an investment philosophy will generate higher returns, the legal requirement would be satisfied. But the professors warn that the evidence for that is far from conclusive. Studies “have exaggerated the potential for ESG factors to generate excess risk-adjusted returns, and have failed to appreciate the instability and lack of robustness in academic findings,” they wrote.

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.

An article by Cass Sunstein: The Office of Legal Counsel can be seen as the Navy Seals of the U.S. Department of Justice. It consists of a relatively small, and quite powerful, group of lawyers who provide legal advice to the president and the Cabinet departments, often on the very hardest questions. If the State Department and the Department of Homeland Security disagree about a legal issue, OLC, as it is called, might well be asked to settle their dispute. If the question is whether Congress can require the president of the United States to hand over his tax returns, or whether the president can fire members of the Federal Reserve Board, or whether executive privilege applies to conversations not involving the president personally, or whether the president is immune from criminal prosecution – well, there is a good chance that OLC will have the final word, at least within the executive branch. This helps explain why Robert Mueller deferred to a crucial judgment of the OLC, to the effect that the president is immune from criminal prosecution as a matter of constitutional law. The special counsel was criticized for following the office’s opinion, but he was right to do so. Robert Mueller is a straight shooter.

An article by Noah Feldman: Amid the flood of opinions the U.S. Supreme Court is releasing in the last two weeks of its term, it would be easy to neglect Gundy v. U.S., in which the court very narrowly upheld a federal law that allows the attorney general to decide whether to require registration by sex offenders who were convicted before the passage of the registration law. But ignoring the Gundy case would be an unfortunate mistake. What matters about it isn’t so much its consequences for sex offenders, or even its unexceptional outcome. What matters is the dissent by Justice Neil Gorsuch, which forms an important bridgehead in the conservative assault on the administrative state. His dissent squarely rejects a foundational constitutional doctrine that underlies almost everything federal agencies do: the doctrine that says Congress can delegate whatever decision-making authority it wants to executive branch agencies provided there is an “intelligible principle” to guide the agencies’ discretion.

An article by Noah Feldman: The U.S. Supreme Court has painted itself into a corner. Two years ago, it held that the First Amendment required the Patent and Trademark Office to register the trademark for a band called the Slants, despite the “offensive” character of the name. Now it has held that the office must register a clothing brand by the designer Erik Brunetti under the name “FUCT,” even though the PTO deemed the mark “immoral” or “scandalous.” Monday’s decision is a big step in the direction of an absolutist conception of free speech. Although several justices wrote separately to say that they thought trademark law could be tweaked so that the government wouldn’t have to give the coveted “TM” designation to pure vulgarities, it’s far from clear that a majority of justices would uphold such a law if Congress adopted it. For now, it’s open season for parties seeking trademark protection for essentially anything.

The gravediggers of liberalism believe that their moment has arrived. Hungary’s prime minister — who condemns “shipwrecked” liberalism — has weakened his country’s courts, changed the electoral system to favor his party and cracked down on universities. Poland’s Law and Justice party has followed suit. On the home front, President Trump openly praises strongmen, disparages judges and the free press, and disdains institutions like NATO that many people view as pillars of the postwar “liberal order” uniting Western democracies. Conservative intellectuals in this country don’t praise all these moves but have suggested they result from genuine frustration with the current political order...The current debate in the United States over liberalism’s worth might be traced to Notre Dame political theorist Patrick Deneen’s “Why Liberalism Failed,” an unlikely bestseller last year. The Roman Catholic right, to which Deneen belongs, has long been skeptical of liberalism. But while Deneen counseled that the faithful should drop out of national political life and focus on local communities, Harvard law professor Adrian Vermeule, a Catholic convert, advocates for a more aggressive approach. He has expressed the hopethat “nonliberal actors” could “strategically locate themselves within liberal institutions and work to undo the liberalism of the state from within.”

A rogue Chinese scientist stunned the world last year when he announced the birth of genetically modified twin girls, prompting widespread outcry from the broader scientific community and calls for a “global moratorium” on editing human embryos that result in births. Yet months later, Democrats on Capitol Hill surprised many science policy experts when they attempted to roll back a related, 4-year-old ban on altering the DNA of embryos intended for pregnancies. To many health policy experts here, and research advocates across the country, the timing — just months after the biggest genome editing scandal in world history — was inexplicable...Research advocates say there’s a way for Congress to roll back the ban on MRT without opening the door to other types of heritable gene editing in or accusations of “designer babies” — or inviting the kind of political criticism that characterized this month’s appropriations debate. “One easy, quick suggestion would be to differentiate mitochondrial replacement therapy” from the other types of germline gene editing, said I. Glenn Cohen, a Harvard law professor specializing in bioethics and health law. “That would then let FDA evaluate it directly, which it is currently prohibited from doing.”

If the President of the United States opposes a bill passed by Congress, he may veto it. But is he allowed to sabotage through executive action a law passed by Congress and signed by an earlier President? This is the central question in a recently filed lawsuit against the Trump Administration that alleges the Administration has intentionally acted to undermine the signature health insurance reform legislation signed by President Barack Obama...Several scholars have previously taken positions similar to the arguments made by the cities in their challenge to the Trump Administration’s actions. Yale Law School Professor Abbe Glucksuggests that the duty to faithfully execute laws entails ensuring “that our laws are implemented in good faith” and using “executive discretion reasonably toward that end.” Similarly, Harvard Law School Professor Noah Feldman contends that the Constitution “recognizes that the president can’t necessarily enforce every law. But it requires a good faith effort.”

The Trump administration has lauded its Clean Power Plan replacement rule as a more legally defensible option for regulating greenhouse gas emissions from power plants. An anticipated flood of lawsuits from environmental groups and states will soon put those claims to the test..."I'm guessing that the challengers to this rule will frame their case in a way that really forces the EPA to grapple with the fact that, as recently as 2015, the agency came up with a very different interpretation of the best system of emission reduction and that it was backed up with a reality-based record," said Joe Goffman, former counsel for EPA's Office of Air and Radiation and the current head of Harvard Law School's environment and energy law program."I think the challengers will really make EPA and [the Department of Justice] work hard to persuade the court to ignore all that."

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."