A new $15 million gift from Dan Emmett ’64 and the Emmett Foundation will strengthen Harvard’s environmental law program and create fresh opportunities for students and advocates looking to safeguard the planet for the people of today and tomorrow, says Jody Freeman LL.M ’91 S.J.D. ’95, the Archibald Cox Professor of Law and founding director of the Environmental and Energy Law Program at Harvard Law School.

“Dan’s gift is a gamechanger: critical to creating a legacy program here at Harvard Law School that will, in perpetuity, support our supremely talented team of staff attorneys, fellows and other experts who deliver such huge benefits to our students and make such a significant difference in the world,” says Freeman, who also established the Emmett Environmental Law and Policy Clinic at Harvard. “We have the best environmental law offerings of any law school in the country without question, and I could not be prouder.”

The transformative gift will establish the Emmett Environmental Law Center at Harvard Law School, which will bring together and bolster academic offerings in environmental and energy law, the Emmett Environmental Law and Policy Clinic, and the research- and policy-focused Environment and Energy Law Program. This latest gift to Harvard Law by Emmett, who is the chairman of the real estate investment trust Douglas Emmett, will also support new initiatives — such as a first-of-its-kind environmental law moot court institute and a fund for student field work.

Because the center is not an advocacy organization, it is an ideal place to advance all kinds of work relevant to environmental law, says Freeman. As an “honest broker,” she says, it can help identify when policies might be unworkable or where law reform is needed. “We’re located in a law school, an academic institution. As such, we play a clear-eyed role about what kinds of climate and environmental rules are vulnerable to challenge, and how we can strengthen them.”

Recently, Freeman, along with Professor Richard Lazarus ’79, Carrie Jenks, the program’s executive director, and Andrew Mergen, faculty director of the clinic, spoke with Harvard Law Today about what Emmett’s new gift will mean for the clinic, program, students, faculty — and the future of our environment.

Harvard Law Today: The Emmett Environmental Law Center has a few goals. The first is to help solve the most serious environmental challenges we face, through developing and advocating for effective legal strategies. How do you do that?

Jody Freeman: Through our clinic and research program, we strengthen and defend the legal rules that protect the environment and public health, advance climate solutions, and accelerate the transition to cleaner energy. We also propose legal reforms that will remove obstacles to climate and environmental progress. To that end, we work on a variety of issues, including federal greenhouse gas rules, state energy policies, corporate climate commitments, public lands conservation, and environmental justice. Everything we do is impacted by or related to climate change and that is the common thread of our work.

For example, our work on federal and state climate rules is focused on ensuring that they achieve their pollution reduction aims, survive judicial review, and can be implemented successfully by businesses and other regulated parties. We want to make sure that the legal regime driving climate solutions is as effective as possible, and workable in practice. 

Richard Lazarus: Most important is how one doesn’t do it: by sitting in one’s professorial office, in exclusively abstract contemplation about effective legal strategies. The pathway for their development is inherently one that requires active discussions with other leading academics, with the best of environmental legal experts in the private sector, public sector, and public interest sector, and ultimately with those policymakers in the position to effectuate the necessary change. To be sure, legal scholarship can play an important role, but also critically important is the convening of thoughtful persons interested in crafting a pathway forward for enacting durable environmental laws, as well as engaging in selected litigation when needed.

Andrew Mergen: Students come to HLS with interests in a range of environmental work. Some students are very interested in litigation and others in policy. On the litigation front, we do lots of work on cross-cutting issues, such as access to the courts and who has legal standing to bring cases — issues which are highly relevant to a lot of different kinds of litigation. And our work increasingly touches on hot topics like the Major Questions Doctrine. We also train students in other issues in flux like the management of water rights in a changing climate.

Two recent litigation projects are illustrative: This spring, we filed a brief defending rules issued by the Department of Labor that relate to retirement planning and the consideration of environmental and social governance issues by fiduciaries. In the fall, we filed a brief in a water rights case looking at whether, when the government requires increased flows for endangered fish, water users are automatically entitled to compensation. As water allocation becomes more important in a world of water scarcity, defining legal rules around those issues is increasingly important.

On the policy front, we have recently worked with organizations in Boston and North Carolina on environmental justice issues and with Alaska Native communities regarding access to subsistence resources. Here, too, the Clinic’s work produces practice-ready lawyers.

Carrie Jenks: At EELP, we focus on federal and state climate and environmental rulemakings and identify opportunities to bring innovative legal analysis to the regulatory process as well as convene different stakeholders — which can include environmental NGOs, industry, as well as experts in technology or health — to explore how an agency can design a regulation to be durable. We want to find ways to ensure the rule survives the courts but also can be implemented by the regulated entities, enforced, and also achieves the environmental objective.   

Our team is currently working on the federal power sector regulations, the oil and gas methane regulations as well as the vehicle rules. For each, we look to identify where there is a hurdle slowing the transition for clean energy deployment and think about how to design a regulation, or what information or expertise is needed, to mitigate that hurdle. We also look for opportunities to align the electricity sector’s legal foundation with modern clean energy technologies and business models. And, we have a team looking at state clean energy policies and identifying ways to accelerate decarbonization of the building sector, for example.

HLT: Why is the law an important avenue through which to tackle environmental issues?

Lazarus: For a simple reason: The necessary changes will not happen without the guardrails and the incentives that law provides. The underlying challenge presented in environmental policy is distributional in nature. Environmental problems, whether relating to pollution control or natural resource management, invariably involve actions at one time and place having serious — and potentially even irreversible and catastrophic — consequences at another time and place. The temporal and spatial divide may, moreover, be not measured in minutes or yards, but in decades and centuries and in thousands of miles. Those spillover effects are beyond the power of the marketplace, without more, to take into account, as well as the grasp of basic human cognition. A carefully crafted legal regime is required to ensure that the correct market signals are sent, individual persons have the information necessary to take the temporal and spatial consequences of their actions into account, extending even to voting in elections, and that some bounds are in place to avoid true catastrophe to both human health and the natural environment.

Freeman: You can have the best technological solutions, and you can come up with the best ideas for how to make progress on climate change, but if you can’t put them into operation, if the legal system doesn’t support and help drive those solutions, then you can’t deliver on their promise. And likewise, if there are legal obstacles to the solutions, you need to figure out ways to remove them and change the legal system to facilitate climate, energy, and environmental solutions. We see law as both a potential obstacle, and a potential enabler of solutions. You have to be able to work on both.

HLT: Another goal is to support the training of students who will shape, enforce, and defend the environmental laws of the future. Why is preparing students for this work such an important component?

Freeman: Our students are the most important resource we have, and they are supremely talented. What we can do is prepare them to make a difference from the very start of their careers by giving them opportunities only Harvard Law School can offer — from exposure to the finest scholars and practitioners on our faculty, to work on the most difficult complex issues in our research program, to training with top level litigators in our clinic. Our students can choose from an impressively broad and deep set of academic courses, work on live client matters in our clinic, and undertake research projects that involve not just law, but also economics, technology, and policy.

Through all this exposure, we launch our students into the world already equipped to be effective advocates, complex thinkers, and leaders. They head into the workplace with a sophisticated understanding of how federal and state regulators work, and they understand strategic litigation. Many of our students will work for environmental organizations, or in the Department of Justice or at other federal and state agencies, and others go into private practice. And our students don’t just go into law; I have a former student who is working on nuclear fusion. Some go into business, or climate finance. If you look at our alumni, you will see them all over the country and throughout the world, at every level of government, and in the private sector, doing very important work on climate, energy, and environmental protection.

Lazarus: Legal education is the single most important thing I do, and critically important to environmental law’s success. For environmental law to work, it must persist and adapt over the long term to ever-changing circumstances. Only with the introduction into the legal profession of succeeding generations of the most talented and creative environmental lawyers can that happen.

HLT: The Emmett Center will include a first-of-its-kind environmental moot court otherwise known as a practice court at Harvard Law School. What will this look like?

Freeman: We think we will be providing a real service for the litigants who argue important environmental, energy, and climate cases. There are already moot court programs that give litigants an opportunity to rehearse Supreme Court arguments. But we think it’s very important to provide an opportunity for advocates to practice arguing cases early on, when they are still in federal district courts and courts of appeal.

Mergen: The goal is to help environmental litigants, who come from both large and small organizations, tap into the resources we have here at Harvard. It’s sometimes hard for litigants to get a wide range of appellate experience outside of the government, but we have a lot of experience we can share. We also have access to phenomenal Harvard Law School faculty that we can bring in on cases to help us think through issues. I think we’re in a really good position to help advocates negotiate this particular legal moment, where there’s a lot of instability in administrative law, which is the basis of environmental law. This includes questions about access to courts and the applicable standards of review.

Ultimately, we want to help prepare environmental advocates in the lower courts. The folks bringing challenges on the other side are very, very sophisticated, strategic, and well-funded. And if you haven’t framed the issues in the best possible light in the lower courts, then you may be stuck in a poor position if or when the Supreme Court hears the case.

HLT: How will the Emmett gift support research?

Jenks: The gift allows us to solidify the environmental law program at Harvard Law School. It ensures we can continue to bring stakeholders together on the complex legal questions arising for environmental law. It supports our ability to expand the cross-cutting projects that leverage the expertise in the clinic as well as at EELP. And, importantly, we will be creating opportunities for our students to take a deep-dive on a broad range of environmental and energy law topics.

HLT: Why is Harvard Law the right place for all this work?

Freeman: We have all the ingredients: We have nationally renowned faculty, and we have an unmatched academic program. And if you put those things together with our clinic and research program, there’s no one who can match what we offer students. Harvard also has a broad global reach. We have an incredible alumni network that has impact around the world.

But our greatest resource and our greatest asset is our students. We educate them and train them, but we also rely on them. They bring enormous interest, enthusiasm, and intellect to this program. And then they go into the world and put all their skills to work. That’s what Dan’s gift allows us to do. It’s really about the future.

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