Carbon Regulation: Untangling the EPA's Attempted CO2 Rule - An Interview with Carrie Jenks

Carrie Jenks is the Executive Director of Harvard Law School’s Environmental and Energy Law Program (EELP), where she works with Professors Jody Freeman and Richard Lazarus.  The EELP team includes several lawyers, Legal Fellows, and the program’s student researchers to pursue EELP’s mission of facilitating the transition to a low-carbon, sustainable future. Prior to this appointment, Jenks was Executive Vice President of M.J. Bradley & Associates (MJB&A), an energy and environment strategic consulting company. Jenks has over fifteen years of legal and policy expertise in climate and environmental law, working with the private sector, non-profit organizations, and policymakers to identify common ground. She holds a Bachelor of Arts degree, cum laude, from Harvard College (concentrating in Environmental Science and Public Policy – ESPP) and a Juris Doctor degree from the Georgetown University Law Center.

The interview below was conducted in the fall of 2021. It has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): Tell us your story, from an ESPP concentrator at Harvard in the 90s to your work with Bradley & Associates and now with the Environmental & Energy Law Program at Harvard. It seems like you have always been interested in the environment and environmental policy.

 Carrie Jenks (CJ): My concentration [at Harvard] was ESPP, which I loved. It was a great way to understand environmental issues from different perspectives. I really enjoyed taking classes at the Kennedy School and the Law School including one on international environmental law. Professor [William] Clark was my thesis advisor and I compared the cod fisheries of New England versus Canada. I was able to travel to Newfoundland and Nova Scotia to interview fishermen and really dug deeply into some of the issues with Harvard’s support.

 I think fisheries is an interesting way to consider environmental problems, because if you don't have buy-in from the fisherman, even if you have a great environmental plan, you won’t solve the environmental problem. The key question is how to balance the economics and the personal and cultural dynamics with the environmental concern.  Fisheries provides a clear illustration of these complex environmental problems.

 HULR: Was there a particular moment when your focus shifted more towards climate change?

 CJ: I don't think climate became as relevant for me until law school, but I interned after college at M.J. Bradley & Associates where I focused on Clean Air Act issues with power companies. Some of that Clean Air Act work involved NOx and SO2 programs, and when I returned to M.J. Bradley after practicing environmental law at law firms, we started working on [the Clean Air Act Amendments of 2010] with Senator Carper and Senator Alexander as Congress was then thinking about how to regulate NOx and SO2 and mercury, and they were also starting to add in CO2 at that time, and I had an opportunity to work on that. I decided to return to MJ Bradley in 2007 because I wanted to expressly do climate work, which was hard to do at a law firm at the time. I wanted a way to straddle law and policy.

 HULR: With MJ Bradley & Associates, it is interesting that you worked a lot with industry and power companies on providing comments for EPA regulations in the drafting phase. Can you describe that process more broadly?

 CJ: At MJ Bradley & Associates, we worked with clients that generally were supportive of having consistent rules that addressed climate change and provided them a sense of where the regulations were going for further emission reductions; they recognized that they were going to have to reduce CO2 and mercury emissions, for example, and being able to plan for that was more consistent with their business model. In the end, those companies still have to provide the electricity, they still have to maintain rates for their customers. But, figuring out how to balance that with the environmental objectives was what MJ Bradley was helping their clients do with EPA regulations.

 HULR:  A little background for our readers – what is the overall pipeline for EPA rulemaking? We know in the drafting phase there is engagement with stakeholders, and then what happens?

 CJ:  If we just take air regulations as an example, Congress sets up the requirements with the Clean Air Act, and then the EPA has to implement that statute. So, every time EPA wants to  implement a rule that will require something of a regulated industry, EPA needs to understand what the options are.

 The rulemaking process under the Administrative Procedure Act requires EPA to propose a rule, allow for comments by stakeholders on that rule, potentially revise that rule based on the comment, and then finalize it. And that's usually a two year or so process to go through. It's also important that EPA develops the rule based on the record, so that requires them to understand the science and the technology. For example, how does the technology that they may require fit into a power plant and how does it affect its operation? What are the cost implications of that? And all of that information combined with the public health benefit of doing this, has to be evaluated and put out for comment so that stakeholders can understand and give EPA feedback. The regulated industry as well as the NGOs have a unique interest to make sure that EPA is getting those assumptions and the outputs right.

HULR: Can you give some concrete examples of a time when involving companies in commenting on EPA’s regulation process proved to be helpful?

 CJ: I think one example that was concrete is a rule under the Clean Water Act that requires power plants to implement measures to protect fish and larvae that could be impacted as the plant brings in water to cool the system.  EPA issued a proposal under section 316 of the Clean Water Act but when the proposal was circulated for comments, there were assumptions and studies that [stakeholders] didn't think were right. So we worked with the companies, EPA, and stakeholders to provide feedback in comments, and EPA was able to finalize a rule and develop the record to demonstrate why they were developing this final rule in a way that the courts upheld it in the end.

 There were some companies that litigated [the rule] and challenged it, but the fact that [EPA] had this record and the comments supporting [the rule], allowed the court to decide that EPA had discretion and EPA appropriately justified their discretion. It's rare that environmental rules get upheld without a lot of back and forth, but this time—and there was plenty of back and forth in prior rulemakings under section 316(b)--they got it right.

 HULR: In that best case scenario, what are some crucial factors that made the commenting and engaging with stakeholders successful?

 CJ: I think that it's important to have the stakeholders trust each other so that they can be honest. It's okay if they don't all agree, but being able to sit down and hear each other is critical. Having regulators and industries coming at it not just trying to oppose something but trying to constructively find a solution, having the NGOs believe that the companies want to find a solution—that's critical.

HULR: So let’s come back to the Clean Air Act and the question of CO2 regulation. The EPA still does not have a CO2-regulating rule that’s being implemented yet. What are some of the factors that have made this rulemaking process especially challenging?

 CJ: I think the challenge is that the power sector is not like other industries, especially for CO2, unless CCS becomes the technology that is widely available. At this time, the technology to reduce emissions is not similar to what plants have done for SO2 and mercury—there is not a scrubber that we can put on every power plant and reduce emissions.  Rather, for CO2, it is very effective if different types of plants with different emission profiles operate differently. And, when we look at state examples of how states have regulated CO2, it has been more of a trading system. But the politics of CO2 is different in different states, which creates political dynamics that are really hard to overcome. And, to date, we've had a Congress that has not had the votes to develop a program for how power plants should address climate change. In the end, there's a lot of different ways to regulate CO2 from the power sector, and trying to get agreement on how best to regulate it is hard.

HULR: So what has the EPA tried to do so far, and what are some of the major court challenges to these past rules? 

CJ: So the Obama’ administration’s Clean Power Plan (CPP) [which regulated CO2 under the Clean Air Act] had what they called three building blocks, which generally was relying on the operation of the entire electric grid in saying that you could turn down one plant and run renewables more to see emission reductions overall. The Affordable Clean Energy (ACE) [the Trump administration's replacement for the CPP] was relying on heat rate improvements [at each power plant], and there's not a significant amount of reductions that result from only heat rate improvements. The general shorthand of those two options is inside the fence line for the ACE rule and outside the fence line for the CPP rule.

What is interesting, is that the day before President Biden’s inauguration, the DC Circuit rejected the Trump administration’s reading of the Clean Air Act. The Trump administration had argued that under the Clean Air Act, EPA can only consider heat rate improvements. But the DC Circuit said, no, that's not the only way you can read the Clean Air Act. They didn't say how you should read the Clean Air Act. But they did say that [inside the fence line regulation for each individual plant] is not the only way that you can get there.

Now the Supreme Court has granted cert [for a petition challenging the DC Circuit’s decision], which means that they've agreed to hear the case. I think the briefing is due by the end of February, and oral argument has not yet been scheduled. But the thought is we see an opinion by the end of the term in June.

HULR: The fact that the Supreme Court granted cert before the EPA even comes up with a new CO2 regulation is quite unusual, is it not?

CJ: It is unusual. I think most people didn't think that it would happen, but there were clearly four justices that wanted to hear the case. However, it’s important to note that they did not grant cert on the section 112 issue, which would have raised the question of whether EPA had the authority to regulate [CO2] under Section 111 at all. So I think that's an important distinction. But we'll have to wait and see.

HULR: So can you talk a little bit about the petition that was filed, what is it trying to argue? 

CJ: The states opposing the CPP, have argued in both the CPP and ACE that EPA doesn't have the authority to reshape the energy system. I think what's interesting to realize though is that even if EPA was just doing a rule that said you must install this technology, as soon as you put a technology on a plant that changes the cost of operating that plant, and that does have impacts on how the system will then respond given that the power system considers the cost to operate a plant. These states also argued that the states have a lot of discretion in determining what their plan should look like, and I think there's debate as to how much EPA can dictate when it sets the best system of emission reductions. There is a role for both EPA and states in that EPA sets the best system of emission reductions and the states figure out how to implement that—but the specifics will matter to both sides. 

HULR: But you said that the court did not grant cert for Section 112. So does that mean that, for example, fundamental precedents like Massachusetts vs. EPA are not at stake? 

CJ declines to answer this question at this time. [XMHN1] 

HULR: With the way things are moving right now, in your opinion, what are some of the best case and worst case scenarios for the US in terms of climate policy?

CJ: I think there's a lot more that the US is doing beyond section 111 rules. The Biden administration is approaching climate as a whole of government approach, and there are a lot of tools: I think the methane regulations for oil and gas sector are coming out today or tomorrow. They are doing other regulations that will affect the power sector, and even though they may not have direct implications in terms of regulating CO2, they will have an impact on the fuel mix. The Department of Energy (DOE) will be supporting technology advancements, and if Congress passes the reconciliation bill, there will be important tax incentives.

I don't think that section 111 is the only tool; I think it is one tool of many. And it is important to recognize that EPA has made clear, even without the Court granting cert, that it does not intend to reinstate the Clean Power Plan. They know the industry has shifted—the power sector already achieved the emission targets the Clean Power Plan would have required—and EPA will have to finalize a rule that recognizes the current Supreme Court. So I think the Court agreeing to hear the case will have an impact in that EPA and the other parties will have to argue the case before the Court , but I don't think it changes the fact that EPA is going to be moving forward on a lot of rules that will address climate, including under section 111.

You also have the SEC thinking about climate disclosures, and CEQ is focused on NEPA and greenhouse gas considerations for energy sector projects. We are seeing courts already taking steps to ensure projects triggering NEPA consider greenhouse gas impacts. And all of that makes a difference. We are also seeing investor pressure, and companies trying to think through how they get to net zero. I think you always want to have regulations as well, but I don’t think things will stop moving. And then states—I think states and their climate policies also ensure that we keep moving to address climate change. 

HULR: So with that, we want to shift to the third part of the interview, which is about your work with the Environmental & Energy Law Program at Harvard University. You switched to this role earlier this year, so how has it been so far? And can you describe broadly your day to day here?

CJ:  Yeah, it's great. We operate as a think tank. We have three staff attorneys, two legal fellows who are recent grads of law school, a communications team, and then we have a series of research assistants who are current Harvard Law students helping us on programs. And, we work to understand and find solutions for the tough legal questions that could get in the way of clean energy deployment, such as: What are legal durable solutions that would help get clean energy deployment faster?

We think through federal policies as well as state policies, so we are working on the section 111 rules and what that means both for power and oil and gas sectors. We're working on the Mercury and Air Toxics rule and thinking through the legal questions that are arising related to anticipated EPA actions, including how to leverage the important public health information to make sure that's part of the record. We are also working on how to ensure state laws can be implemented with federal energy policy. And then we're also doing some climate-related disclosure work. As companies have zero targets, the SEC is expected to require information related to climate related disclosures, and we are exploring what that means for companies.

So we try to figure out what are the fun, hard legal questions and how to add value to those conversations.

HULR: Do you have a personal favorite?

CJ:  Section 111 [of the Clean Air Act] is one of my favorites. Maybe I'm a glutton, but I do believe that climate change has to be addressed, and section 111 is the tool that we've been using, or trying to use for a while. The Mercury and Air Toxics rule is another interesting one, because it's actually been implemented by the power sector completely. It was very controversial to implement it, but the power sector did implement it, kept the lights on, and operated the system reliably. Now we're fighting over some of the legal issues, not actually whether the rule should stay in place, so that's an interesting one. And, here we are talking about toxic pollutants, so I enjoy learning from public health experts as the science has continued to improve since EPA first regulated it.

HULR: What would you say are the top differences that you are experiencing now working in academia versus your previous role?

CJ: I don't represent clients now, which is very different. I am still working on the same topics, same questions, same rules, but we get to try to think through what are the best solutions, and help the various stakeholders evaluate those options and try to come up with real-world solutions that actually can get through as opposed to having to represent a certain client. That’s an interesting difference.

HULR: How do you think your experience with representing those clients has informed your work now? 

CJ:  I think we don't want to just be putting out solutions that may be the smartest if they can't be implemented. So knowing that you've got to get industry buy-in and industry support for those solutions. And working with industry to help identify the solutions is what I think is fun, to bridge those two worlds.

HULR:  To wrap up the conversation, as you mentioned, the law and the legal industry have a reputation for moving at a very slow pace, which might be a shock to students who want to see systemic change happening quickly in the climate policy sphere. What advice would you give for students considering going into environmental and climate law?

CJ: I think two things: I think there's a lot of different ways to be in environmental law. You can be a litigator, and being in the courtroom and arguing about what is on the paper, what are the words, what does it mean, and what should you be doing about it?

But law is the development of the policy or the statute or the rule. And the better you can make that, the less you'll argue about in the end. And I like the sort of “sausage-making” that happens even before you get words on a paper.  I enjoy figuring out what are the various viewpoints that need to be taken into consideration to get that law to be the best it can be.

It is slow. I think about it in terms of my children. I've been working on these rules and we have a twelve year-old and 8 year old, and I often think about how they have grown in each phase and how that vastly exceeds the pace of rulemaking.  I started working on many of these rules before they were born. But I do think the industry changes. It's a business model that you're trying to change, and that is slow. But once you start to change, once businesses start to change in response to law—that's durable.

I would rather see that slow progression and have it stick, and not have it be this yo-yo with the administration. Businesses really want to make sure they're on the right path, whatever that path is. They don't want to lose ground. But if you can get the rules set up so that there is not the concern that they may swing back and forth every four years, companies will keep making progress. So that gives me comfort that it's not too slow.

This is why the law matters.  Although progress can be slow, once a law sticks, that can be the floor.  Then at least when there is a yo-yo, you're going up and not below the floor. Law can give businesses the confidence that we’re going along that path, and the states have confidence that we are going along that path, even if some states work to make that path go faster. Each of those components allow us to keep making progress.