Publications

EELP faculty, staff, and students are producing groundbreaking work in scholarship, cutting-edge legal analysis, and policy and regulatory backgrounders that explain the impacts of legislative and regulatory changes, as well as law review and other articles. We dive deep into issues of importance to environmental and energy law.

2019

March/April 2019 Climate Litigation Has at Least for Now Dodged a Possibly Fatal Blow, The Environmental Forum. An argument that the federal government had violated twenty-one children’s constitutional rights by “creating, controlling, and perpetuating a national fossil fueled based energy system” will not be heard in court due to the trial’s postponement. Richard Lazarus explains that the resulting ruling would likely have been “harsh…with negative repercussions affecting all climate jurisprudence.”

January/February 2019 Kavanaugh’s Ascent Is Enormously Significant for Environmental Law, The Environmental Forum. Richard Lazarus explores the potential consequences of Brett Kavanaugh’s appointment on environmental law based on the numerous environmental cases in which he participated on the D.C. Circuit.

2018

Dec. 10, 2018 Issue Backgrounder: Definition of Waters of the U.S. Caitlin McCoy prepared a background memo in anticipation of the release of EPA’s proposed rule redefining Waters of the U.S. on Dec. 11, 2018 with relevant background information and what to expect from the proposal.

Dec. 6, 2018 What Environmental Protection Owes George H.W. BushExecutive Director Joe Goffman reflects on the role that Former President Bush played in developing and ensuring the passage of the 1990 Clean Air Amendments. Read his reflections on the former president’s legacy and listen to an interview with him about his experience on the 1990 amendments.

Nov.-Dec. 2018 Reconstruct an Administrative Agency, Environmental Law Forum, by Executive Director Joe Goffman examines the structures that Scott Pruitt dismantled during his tenure at EPA.

Nov. 5, 2018 Beyond the Waiver: EPA’s Plan to End State GHG Vehicle Standards, by HLS student Michelle Melton (JD ’19), examines how the administration’s proposed new greenhouse gas emissions standards for cars reinterprets CAA § 177, stripping the states beyond California of their ability to adopt greenhouse gas standards for vehicles in their jurisdictions.

Oct. 29, 2018 Memorandum on EPA’s Proposed Changes in New Source Review in ACE. Staff Attorney Hana Vizcarra provides an outline of the Trump administration’s proposed changes to the Clean Air Act New Source Review program and analysis of the legal arguments and impacts.

Oct. 11, 2018 Memorandum on the proposal to repeal the Clean Power Plan and the proposed ACE Rule provides an outline of the arguments advanced in i) the proposal to repeal the Clean Power Plan (CPP) and ii) the proposed Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units, part of the Affordable Clean Energy (ACE) Rule.

Sept. 28, 2018 Memorandum on EPA Review of the Mercury and Air Toxic Standards. This Issue Backgrounder provides an early look at potential changes to the Mercury and Air Toxic Standards and possible resulting pollution impacts and provides important background on the rule itself and the legal issues involved.

Sept. 20, 2018 The Case Against Direct FERC Regulation of Distributed Energy Resources, a White Paper by Electricity Law Initiative Director Ari Peskoe, pieces together, from numerous orders and federal court decisions, how the Federal Energy Regulatory Commission’s (FERC) jurisdiction over interstate wholesale energy sales and transmission service applies to DERs. The paper recommends that FERC disclaim jurisdiction over DER energy sales, which would allow states to regulate all DER sales and services.

Aug. 24, 2018 CAFE Standards and the California Preemption Plan. This legal memorandum walks through the preemption analysis laid out in EPA and NHTSA’s proposed rules for fuel economy and greenhouse gas (GHG) emissions standards to explain how the agencies are approaching the issue.

July 25, 2018 Comment of the Harvard Electricity Law Initiative on the Certification of New Interstate Natural Gas Facilities. Comments filed by Electricity Law Initiative Director Ari Peskoe on FERC’s 20-year old policy that guides its decisions on permitting interstate natural gas infrastructure argue that accounting for the economic risks and environmental harms of greenhouse gas (GHG) emissions in a permitting proceeding is consistent with judicial precedent and Commission practice.

July 10, 2018 Errors and Inconsistencies in GAO’s Reports on the Congressional Review Act, a White Paper written by guest author Curtis Copeland. The author worked at GAO from 1980 to 2004, and then at the Congressional Research Service from 2004 until he retired in 2011. After retirement, he served as a consultant and special counsel to the Administrative Conference of the United States (ACUS) for several years.  He is no longer affiliated with any organization.

June 19, 2018 California, CAFE Standards, and the Energy Policy and Conservation Act. This legal memorandum examines the law of exemption under the Energy Policy and Conservation Act and how it impacts EPA and NHTSA actions concerning fuel economy and vehicle emissions standards.

May 7, 2018 Comment of the Harvard Electricity Law Initiative on PJM Interconnection, Revisions to Address Impacts of State Policies. Comments filed by Electricity Law Initiative Director Ari Peskoe at the Federal Energy Regulatory Commission (FERC) about proposed capacity market rule changes emphasize that procuring electric generation capacity is a program of cooperative federalism – states may choose among resources for their environmental or other benefits while FERC has authority over capacity prices in interstate markets.

April 13, 2018 Water Quality and the 2018 Farm Bill: The Regional Conservation Partnership Program, a White Paper by Jamie Konopacky, identifies projects that have been successfully created at the state and local levels to address negative impacts from nutrient pollution and suggests scaling them up by implementing a critical mass of these projects across multiple states and regional watershed areas. Scaling up local watershed projects to a level sufficient to address the nutrient pollution problem will require that policymakers coordinate relevant state and federal water and agriculture policies and focus them on systematically replicating model local watershed projects. This will require a sound policy framework that includes a local watershed planning and implementation approach and provides adequate funding, data, expert staff, public technology and training to support needed local watershed projects.

Feb. 21, 2018 Small-Scale Watershed Planning and Implementation in America’s Farming Communities, a White Paper by Jamie Konopacky, includes key insights gathered during a focused discussion co-hosted by the Harvard Environmental Policy Initiative and the Minnesota Water Resources Center. The meeting aimed to share the learning and expertise of participants and advance regional discussion of a coherent model policy approach for expanding watershed project efforts.

2017

Nov. 27, 2017 Climate Implications of FERC Proceedings, a White Paper by Ari Peskoe and Kate Konschnik, examines how Federal Energy Regulatory Commission (FERC) decisions affect the mix of resources on the electric grid and energy sector greenhouse gas emissions.

Nov. 3, 2017 Amicus Brief in Village of Old Mill Creek, et al. v. Anthony M. Star, et al. and Electric Power Supply Association, et al. v. Anthony M. Star, et al. Ari Peskoe and Professor Jim Rossi of Vanderbilt University Law School, filed an amicus brief on behalf of nearly 20 energy law professors in the Seventh Circuit case about Illinois’ Zero Emission Credits (ZECs) for nuclear power.

Oct. 18, 2017 Minimizing Constitutional Risk: Crafting State Energy Policies that Can Withstand Constitutional Scrutiny, a White Paper by Ari Peskoe and Kate Konschnik, provides policymakers with key lessons from recently filed lawsuits and suggestions on how states can work within their constitutional limits to achieve energy policy goals.

Oct. 18, 2017 Comments of the Harvard Environmental Policy Initiative on The Department of Energy’s Proposed Grid Resiliency Pricing Rule, written by Ari Peskoe.

August 2017 The Uncomfortable Convergence of Energy and Environmental Law, Harvard Environmental Law Review, Vol. 41, No. 2, by Archibald Cox Professor of Law Jody Freeman, examines the relationship between energy and environmental law, two historically disparate fields, which some scholars suggest have been “converging” in recent years.

July / August 2017 Will Justice Gorsuch on Water Act Prove Different Than Scalia Would?, The Environmental Forum. Professor Richard Lazarus, Howard and Katherine Aibel Professor of Law, examines what effect Justice Gorsuch’s appointment might have on the outcome of this case, and on environmental law itself, in his recent article for The Environmental Forum.

2017 Easy Jurisdictional Tensions by Integrating Public Policy in Wholesale Electricity Markets, Energy Law Journal Vol. 38:1. This journal article by Ari Peskoe explores FERC’s authority under the Federal Power Act to approve an RTO tariff that includes zero-emission energy procurement or a carbon price and concludes that approval of a wholesale market tariff that incorporates public policy goals is consistent with the generous construction of the FPA afforded by courts.

Feb. 14, 2017 PURPA @ 40: Remarks at NARUC’s 2017 Winter Meeting. Ari Peskoe’s remarks at NARUC’s 2017 Winter Meeting recap the purpose and history of Title II of the Public Utilities Regulatory Policies Act of 1978 and comments on recent controversies.

2016

Aug. 2016 Constitutional Issues to Consider in Clean Power Plan Compliance, Part 2: The Dormant Commerce Clause, a White Paper by Kate Konschnik, describes the contours of the US Constitution’s Commerce Clause, and explains how states can design multi-state compliance strategies that do not discriminate based on origin, wholly regulate out-of-state activity, or unduly burden interstate commerce.

June 22, 2016 Presentation at the Federal Trade Commission’s workshop on rooftop solar by Ari Peskoe highlights the critical role of state regulation in how investor-owned utilities have responded to the growth of distributed energy resources.

June 2016 Unjust, Unreasonable, and Unduly Discriminatory: Utility Rates and the Campaign Against Rooftop Solar, Texas Journal of Oil, Gas, and Energy Law, Vol. 11, Issue 2. This journal article by Ari Peskoe is a primer on utility ratemaking that provides an historical perspective on recent and ongoing debates about rooftop solar utility rate reform (appears in The Texas Journal of Oil, Gas, and Energy Law).

Jan. 27, 2016 Designing Emission Budget Trading Programs Under Existing State Law, a White Paper by Ari Peskoe analyzes existing state authority to freely allocate allowances to EGUs and non-emitters, to auction allowances, and to include newly constructed sources in the program.

Jan. 21, 2016 Comments on EPA’s Proposed Federal Plan and Model Trading Rules by Kate Konschnik focus on aspects of the proposal that will shape the design of well-functioning trading markets.

2016 Comment to Department of Energy on the Quadrennial Energy Review. Comments by Ari Peskoe rebut the notion that there is a “regulatory compact” between regulators and utilities that underlies regulation.

2015

Oct. 20, 2015 Emission Rate Credits in the Clean Power Plan: An FAQ for States and Stakeholders by Ari Peskoe addresses definitional and legal issues about Emission Rate Credits (ERCs) and is organized around the following three questions: 1) What are ERCs? 2) How do ERCs interact with existing tradable instruments? 3) How will EPA and states ensure the integrity of the ERC market?

Sept. 3, 2015 The Federal Power Act in the 21st Century. Summarizes a discussion among experts from academia, industry, public utility commissions, and environmental organizations to mark the 80th anniversary of the Federal Power Act.

Aug. 19, 2015 State Roles in the Clean Power Plan: A Primer for States, a White Paper by Kate Konschnik and Ari Peskoe, highlights responsibilities that states will have under the Clean Power Plan and provides an overview of basic plan design choices.

Aug. 2015 (Revised Jan. 2016) Issues to Consider When Crafting Clean Power Plan Multi-State Compliance Approaches, Part 1: Compact Clause, a White Paper by Aladdine Joroff and Kate Konschnik, describes the contours of the U.S. Constitution’s Compact Clause and  Section 102(c) of the Clean Air Act, and explains how states can design multi-state compliance strategies that do not require additional Congressional consent.

July 23, 2015 Comment on NARUC’s Manual on Compensation for Distributed Energy Resources. Comments given by Ari Peskoe urge the Subcommittee to include in the next version: 1) a thorough examination of how deployment of DERs by consumers and non-utility companies affects utility financial performance, and 2) consideration of competition and consumer choice in DER rate design.

2014

Fall 2014 Goal-Oriented Disclosure Design for Shale Oil and Gas Development, written by Former EPI Director Kate Konschnik and published in the Natural Resources Journal (Vol. 54, No. 2, Fall 2014), argues that disclosure laws are more effective when they are viewed as a means to achieving worthwhile policy goals. By thinking through when target audiences need information, how they use information, and where they get their information, disclosure law designers can draft disclosure laws that will hit their mark.

July 21, 2014 Power Over Pollution: Exploring State Plan Enforcement under EPA’s GHG Power Plant Rule, a White Paper by Kate Konschnik and Ari Peskoe, describes how EPA and States generally enforce State plans submitted under the Clean Air Act, and how EPA proposes to treat enforcement issues under its rule for power plants. The paper also surveys laws in four States to assess whether they provide regulators with sufficient authority to meet EPA’s proposed requirements.

July 2014 Certifications for Green Infrastructure Professionals – The Current State, Recommended Best Practices, and What Governments Can Do to Help.  Released by the Clinic and the Policy Initiative in July 2014, this report surveys the current state of Green Infrastructure (GI) professional certification programs, discusses obstacles to the development of widely accepted certifications, and suggests measures that governments can take to promote certification programs. The report also recommends best practices for GI certification program design and implementation based on design options observed in existing GI certification.

June 2014 Regional and Municipal Stormwater Management: A Comprehensive Approach. Released by the Clinic and the Policy Initiative, this report analyzes options for addressing stormwater pollution at both the regional and municipal level.  The report encourages the adoption of green infrastructure by municipalities as a stormwater pollution reduction strategy, and recommends that municipalities consider participating in a regional program as a comprehensive and cost-effective way to address stormwater pollution.

May 2014 Responding to Landowner Complaints of Water Contamination from Oil and Gas Activity: Best Practices was released by the Clinic and the Policy Initiative in May 2014. The paper provides recommendations for state lawmakers and agencies to consider implementing to develop robust, comprehensive policies for responding to landowner complaints.  If adopted, these practices can help ensure that agencies conduct a thorough investigation of potentially contaminated water sources, landowners obtain an accurate understanding of the finding, and the investigatory process is open and transparent.

March 3, 2014 Efficiency Rules: The Case for End-Use Energy Efficiency Programs in the Section 111(d) Rule for Existing Power Plants, a White Paper by Kate Konschnik and Ari Peskoe, concludes that energy efficiency can play two roles in EPA’s power plant rule. First, EPA should set the stringency of its GHG emission guidelines based in part on EE’s ability to save energy. Second, States should be allowed to establish or build on their existing EE programs to implement the GHG standard.

Feb. 24, 2014 Shale Gas Development: A Smart Regulation Framework was written by Former EPI Director Kate Konschnik and Mark Boling, Executive Vice President of Southwestern Energy Company. The peer-reviewed article presents the CO/RE framework — characterization of risk, optimization of mitigation strategies, regulation, and enforcement — to design tailored governance strategies. The framework raises key questions about early efforts to govern shale gas, and suggests paths forward.

2013

April 23, 2013 Legal Fractures: Why the Voluntary Chemical Disclosure Registry Fails as a Regulatory Compliance Tool, a White Paper by Kate Konschnik, with Margaret Holden and Alexa Shasteen, questions the reliance of eleven states on a third party website for oil and gas industry reporting requirements. The registry, FracFocus, is intended to provide information to the public about the chemicals used in unconventional drilling techniques like hydraulic fracturing. But, according to the report, several design flaws make it an inadequate tool for regulatory compliance.

Additional Resources

Statepowerproject.org tracks constitutional challenges to States’ clean energy laws. Challenges are wide ranging but most focus on two grounds: preemption by the federal government, or State overreach into regulation of interstate commerce. The site includes summaries of litigation, background about key concepts, and decisions and filed briefs. We offer the site as a clearinghouse and reference for stakeholders, students, and researchers with interest in these cases.

Policymaker Summaries distill recent scholarship on state-federal energy policy issues to highlight key recommendations.