On September 28, the Harvard Law School Environmental Law Program and Environmental Law Institute hosted a Supreme Court Review and Preview to discuss the implications of recent Supreme Court decisions on the field of environmental law. Harvard Law School Dean Martha Minow introduced the event, and emphasized the Supreme Court’s role in the formation of environmental policy in the United States.
“To watch how environmental policy is made in the United States often surprises people in other counties, because here the Supreme Court is extraordinarily influential,” she said.
Panelist Jody Freeman LL.M. ’91 S.J.D. ’95, the Archibald Cox Professor of Law at Harvard Law School, began the event with a discussion of American Electric Power v. Connecticut, which was decided on June 20, 2011. The case centered on a lawsuit alleging that utility companies are a public nuisance because their carbon-dioxide emissions contribute to global warming. Based on the justices’ line of questioning at oral argument, Freeman said, it was fairly clear that the Court would rule in favor of the utility companies, but she added that it was less clear how narrow the holding would ultimately be.
“The decision is as significant for what it did not do as for what it did do,” she said, noting that while the Court did indeed decide against the plaintiffs, “this was the narrowest decision possible.”
The Court held that the Clean Air Act displaces any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Nonetheless, the holding in AEP v. Connecticut is actually a victory for environmentalists, according to panelist E. Donald Elliott (below left, with Freeman and Lazarus), adjunct professor at Yale Law School and Georgetown University Law Center, and partner at Willkie Farr & Gallagher.
“Not only did the Court decide it on the narrowest possible grounds, but they left open the possibility of state common law nuisance claims, which keeps pressure on the EPA to regulate,” Elliot said. “Oftentimes it is very important to threaten people with an outcome that’s even worse than compromise. From an industry standpoint, the idea of being faced with common law nuisance claims is even worse than being faced with federal regulation.”
Another important case from the last term was Montana v. Wyoming, decided on May 2, 2011. Montana claimed that Wyoming was essentially using too much water in violation of the Yellowstone River Compact, which spelled out how the states would share water. Wyoming had shifted to a more efficient system of irrigation, which resulted in less water returning to the river and going downstream to Montana.
Panelist Richard J. Lazarus ’79, the Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School, explained why environmental law scholars found this water law case fascinating.
“This case is rich in history, with far-reaching significance,” he said, because, if the court had ruled the other way, parties upstream would be discouraged from efficient water usage. “The problem with water is that it won’t sit still. Sharing water becomes both very essential, and very challenging. That’s the crux of water law, figuring out how to share water fairly and efficiently.”
On the docket for the next term is another case with potentially far-reaching environmental implications, Sackett v. EPA. Elliot, along with Environmental Law Institute President John C. Cruden, described the details of the case. The Sacketts purchased a lot in a subdivision 500 feet from a lake – a parcel of land that contained no water. After they began the early stages of building a house on the property, the local EPA issued a compliance order against the Sacketts alleging that the parcel is a wetland subject to the Clean Water Act and ordering the Sacketts to restore the land to its original condition. The issue in the case is whether the compliance order was a violation of the Sacketts’ procedural due process rights. The panelists explained why this case has dangerous implications for environmentalists.
“Even though these facts are quite rare and terrible, this case could remove the flexibility the EPA has to use compliance orders as enforcement across a wide variety of situations,” said Freeman. “If the language of the decision is too broad, it could really be a terrible loss of an enforcement tool for the Agency.”
This event marked the continued growth of the Environment Law Program at Harvard Law School. Under the direction of Freeman, the program now includes a course on Climate and Energy Law and Policy, and has worked to expand the Emmett Environmental Law & Policy Clinic, with Clinical Professor Wendy Jacobs, in order to develop new opportunities for students interested in doing a wide variety of hands-on environmental legal and policy work. The recent arrival of Lazarus — widely regarded as the nation’s preeminent environmental scholar and Supreme Court practitioner — cemented Harvard Law School’s position as a leading center for the study of environmental law.
Freeman returned to the Harvard Law School faculty in March 2010, after serving in the White House as Counselor for Energy and Climate Change since January 2009. In her role as Counselor to Carol Browner, Director of the White House Office of Energy and Climate Change (OECC), Freeman contributed to a variety of policy initiatives on American energy and climate change issues, including the pursuit of comprehensive energy and climate legislation that would place a market-based cap on carbon. The OECC helped to facilitate President Obama’s national auto policy, which represents an historic agreement among the auto industry, California and key stakeholders to support the most ambitious federal fuel efficiency standards and the first-ever federal greenhouse gas standards.
Lazarus is one of the nation’s foremost experts on environmental law and is also a leading practitioner in the U.S. Supreme Court. Prior to joining the Harvard Law School faculty in 2011, Lazarus had worked for the U.S. Department of Justice and in the Solicitor General’s Office. He has represented the United States, state and local governments, and environmental groups in the U.S. Supreme Court in approximately 40 cases, many of which raised natural resource and environmental law issues. Lazarus’s 2004 publication, The Making of Environmental Law (University of Chicago Press), is widely hailed as the definitive history of the emergence and evolution of modern environmental law in the United States. He recently served as executive director of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, appointed by President Obama to investigate the root causes of the Gulf oil spill. In August, Lazarus was honored at the ABA annual meeting in Toronto with the association’s Award for Distinguished Achievement in Environmental Law and Policy. Established to recognize outstanding accomplishments in environmental law or policies, the award was given to Lazarus for his significant leadership in improving environmental protection and sustainable development.