In October 2007, the Kansas Department of Health and Environment made the unprecedented decision to deny a permit application for three new coal-fired generating units that together would emit 11 million tons of carbon dioxide into the air each year, citing greenhouse gas emissions and climate change as the reason for the denial.
As expected, the power company and its supporters filed appeals in multiple forums, sending the state scrambling for legal allies. It found them among a group of Harvard law students involved in the Law School’s Environmental Law and Policy Clinic.
“We narrow our case selection to the most complex, precedent-setting cases. We don’t take on routine or easy cases,” said Clinical Professor of Law Wendy Jacobs, who heads the clinic.
The clinic is an important part of the Law School’s Environmental Law Program, founded and directed by Law Professor Jody Freeman, who came to Harvard from the University of California, Los Angeles, in 2005.
The program consists of a series of courses that students interested in environmental law can progress through or pick individually to suit their interests. The clinic, started a year ago, gives students a taste of practicing environmental law in the real world.
While Harvard Law School (HLS) has occasionally had faculty with interests in environmental law, it lacked a coherent program until the Environmental Law Program began, Freeman said. With the increasing prominence of environmental issues, Freeman said, that omission needed to be rectified.
“Harvard Law School is a leading institution. People take notice of what we do,” Freeman said. “It is long overdue.”
The program introduces students to a field that began in the late 1960s and has grown since the 1980s, Freeman said, when it was largely litigation-based and dominated by efforts to get parties to abide by environmental laws and regulations.
Today, she said, though there remains the need to enforce laws through legal action, environmental law encompasses a host of other activities, including the regulatory design of whole new markets to limit carbon emissions as a response to climate change.
“In the ’80s,” Freeman said, “it was important to enforce the first round of statutes. Now there’s the opportunity for creativity and designing markets. I really emphasize the idea of lawyers thinking like architects.”
While scientists, economists, and policymakers will all play a role in new environmental regulatory markets, Freeman sees lawyers as an essential part of the mix. It is they who can design the legal language of rules and laws so it does what policymakers — informed by scientists, economists, businesspeople, and others — desire.
“The truth is the devil is always in the details. Scientists, who are crucial, can produce climate modeling. Policy people debate policy, but somebody has to sit down and translate that into laws and regulations. Lawyers are trained to think about this, how to design laws and regulations,” Freeman said. “Without lawyers, it’s hard to imagine translating this from the imagination phase to the implementation phase.”
Law students don’t have to use their imagination to understand what practicing environmental law would be like. At the clinic, they get to do the real thing.
Though just a year old, the clinic is already larger than most others of its kind, Jacobs said, managing 10 diverse projects and cases and 25 students. Jacobs and Freeman have been ambitious about the clinic’s caseload and, though they now have just one staff attorney, want to bring on another as well as a policy analyst to support further expansion of both the clinic and the program. It’s a far cry from a year ago, Jacobs said, when she worked alone in a single office, managing externships in which students were placed in environmental jobs outside of the Law School.
“The clinic is growing by leaps and bounds,” Jacobs said.
The clinic’s work is very diverse, she added, spanning such precedent-setting legal action as the Kansas lawsuits and a variety of other legal activities, from public education about energy conservation to helping the California Attorney General’s Office draft comments on hundreds of pages of proposed Environmental Protection Agency rules to assisting a team of scientists and doctors to resolve thorny legal questions about the ramifications of collecting environmental samples from people’s homes to analyze the impact of chemicals on health and well-being.
“The clinic is a really dynamic and challenging place to be,” Jacobs said. “Our students are excited and my sense is that they’re sometimes startled by how important yet difficult the work can be.”
In the Kansas lawsuits, students have prepared and filed briefs on behalf of the state in the Kansas Supreme Court, in lower state courts, and in the Office of Administrative Hearings. They’ve also helped Kansas Secretary of Health and Environment Roderick Bremby draft Congressional testimony on the case.
“It’s been a great experience, learning a lot about how to write briefs,” said Dan Silverman, a student at the clinic. “There’s not a lot of opportunity to do real legal work in law school.”
Chris Looney, another student at the clinic, agreed, saying it is a thrill to work on a case that may set a key precedent in environmental law.
“It’s exciting to be working on a case that’s high profile, really an important case. It’ll set an important precedent in what administrators can do about the regulation of greenhouse gases,” Looney said.
Another student involved in the clinic, Kate Bowers, said she took Freeman’s environmental law class last spring and became “utterly hooked.” She worked last summer at a New York City law firm and wanted get more real world experience, so she joined the clinic.
“I like the intersection of government and regulated entities,” Bowers said. “The positions parties take are always evolving. As an area of law practice, it’s always changing. As a subject matter, I like working in a field where I can make the world better.”
Bowers was assigned to work on a project that is a partnership between the clinic and a boutique environmental law firm near Philadelphia, which has among its clients builders interested in green building techniques. Bowers and another clinic student have identified and analyzed the legal issues associated with green buildings, in which new technology and new building standards are creating potential pitfalls for builders. What happens, for example, if a building doesn’t turn out to be as energy-efficient as initially thought? What if it doesn’t earn the energy-efficient rating promised and that, in turn, affects financial matters like tax credits?
“We’re working on the cutting edge of environmental law,” Bowers said.