More Victories in Kansas for Environmental Clinic

In one of the most important “green” cases in the nation to date, students in the HLS Environmental Law and Policy Clinic have won yet another victory in their ongoing defense of the State of Kansas for its decision to deny a permit for a coal-fired plant because it failed to account for its greenhouse gas emissions.

The students are litigating the case in every forum in the state, including in a federal district court challenge by Sunflower Electric claiming that the governor and others denied its constitutional rights by denying the permit application. After extensive briefing this fall by the HLS clinical students, the administrative hearing officer recently issued a decision in favor of its clients.

“To date, we've won each proceeding,” says Wendy Jacobs, director of the clinic and Assistant Clinical Professor of Law, who predicts the clinical students will be back in the Kansas Supreme Court during the spring as litigation continues.

The Kansas project was initiated last year by Jacobs, who reached out to the state’s Secretary of the Department of Health and Environment to help defend his position after his highly controversial decision to deny the permit. The permit denial was the first of its kind in the country. Under Jacobs’ direction, the clinic officially serves as co-counsel with the General Counsel of the Department in defense of several lawsuits, and a team of HLS students has been working on the case since December 2007, participating in every aspect of the litigation and the administrative hearings, including filing two briefs in the Kansas Supreme Court. The clinic also assisted the Secretary in preparation of his testimony on the matter before the U.S. Congress, and three clinic students traveled last spring to Washington D.C. to observe the hearings.

Clinical students are involved in a number of other projects. “We are very busy and doing great, cutting edge work,” says Jacobs. Among their efforts this fall:

• A team of four students filed a major set of comments with the EPA concerning the underground injection of carbon dioxide and are continuing their research into a legal framework for the regulation of a technology for reducing carbon dioxide emissions known as CCS (carbon capture and sequestration). A workshop on CCS will be hosted in spring 2009 by Professor Jody Freeman and Jacobs.
• Two clinical students completed an extensive white paper on green buildings issues with a focus on best management practices for developers/builders and for consumers.
• Two students completed a thorough analysis of opportunities for housing authorities to weatherize units, create carbon dioxide reduction credits, sell the credits and re-invest the revenues in affordable housing.
• The Town of Somerset, Mass., has asked the clinic to represent it in a multi-jurisdictional effort to block an LNG facility from being constructed in environmentally sensitive waters adjacent to the town.
• The Executive Office of Energy and Environment in Massachusetts has engaged the clinic to act as special regulatory counsel for its Ocean Management Plan, the first draft of which is due next summer.