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Students' Environmental Law Group Participates in EPA Rulemaking

December 17, 2008

Twenty-one students at the University of Pennsylvania Law School worked for 300 hours on a 42-page paper for which they won't even receive a grade. But they just may help save the planet.

Twenty-one students at the University of Pennsylvania Law School worked for 300 hours on a 42-page paper for which they won't even receive a grade. But they just may help save the planet.

When the Environmental Protection Agency proposed new clean-air rules and asked Americans, "Is there a better way to regulate greenhouse gases than using the Clean Air Act?" an environmental student group at Penn Law decided to prove that there is.

"Depending on how well the government responds, the EPA's proposed rules have the possibility of being the most important [environmental] regulations of the 21st Century," says Christina Kaba, a second-year student from Drexel Hill, Pa., who is co-chair of the student pro-bono group, the Environmental Law Project.

Their 42-page comment, filed with the EPA in its rulemaking proceeding, delineates how regulating greenhouse gas emissions from residential and commercial buildings - not just industrial sources - is both important and cost-effective. But granting permits to every residential and commercial producer of greenhouse gases, as the Clean Air Act does now with industrial sources, would be onerous. And greenhouse gases are fundamentally different from the air pollutants the act was designed to regulate.

Instead, the students offer alternatives and are excited about their possible influence.

"We've collated a lot of data in this paper; it's a major contribution," says Roland Backhaus, a second-year student from Annapolis, Md., who co-chaired the undertaking.

After reviewing the legislation that mandates new air pollution regulations to address greenhouse gases, the students outline cost-effective technologies for curbing emissions from residential and commercial sources and discuss green technologies for building and retrofitting homes.  In order to improve the efficiency of a building's thermal envelope and reduce energy consumption and greenhouse gas emissions, they offer suggestions ranging from simple programmable thermostats to more complex air source heat pumps, an alternative to traditional heating systems.

Finally, they present case studies of a statewide effort in California and localized efforts in Seattle, Wash., Berkeley, Calif., Chicago, and Portland, Ore. In Chicago, for example, new building codes were established to promote the conservation of electricity, and in Seattle the city provides consumer rebates and grants to encourage citizens to purchase new, more efficient technologies.

The students' opportunity to counsel the EPA was a long time in the making.  It began last year, when the Environmental Law Project approached Cary Coglianese, the Edward B. Shils Professor of Law and director of the Penn Program on Regulation, asking for additional ways to get clinical experience in environmental law. He suggested that the group participate in notice and comment rulemaking, which occurs when a government agency wishes to change a rule or regulation. The agency publishes a notice of proposed rulemaking in the Federal Register requesting comments on the proposal. During an open period, the public can offer comments that are used to make adjustments to the new rule.

"Participating like this in a rulemaking proceeding gives our students an opportunity to gain practical writing and legal advocacy experience -- as well as contribute positively to the resolution of a significant public policy issue," Coglianese says.

The EPA undertakes 200-400 such rulemakings each year. The greenhouse gas rulemaking grew out of the Supreme Court's 2007 decision in Massachusetts v. EPA that held that the EPA had to regulate greenhouse gases under the Clean Air Act. Penn Law students started following the rulemaking soon after the Supreme Court's decision, including participating in a conference call Professor Coglianese arranged with high-ranking EPA officials.  They were ready to go when the EPA published an advance notice of proposed rulemaking this summer, requesting comments by November 28 on how to regulate greenhouse gases under the Clean Air Act.

"The opportunity to comment on major regulation was exciting and unexpected. We sustained the project for one-and-a-half years while the EPA got around to asking for comments," Kaba says.

Of the student group's 70 members, 21 participated in drafting this comment. Project organizers Backhaus and Kerri Kuhn, a third-year student from Colorado Springs, Colo., assigned work teams. Backhaus thinks this is where he learned the most, acknowledging the difficulties of directing 20 people toward a common goal.

Kuhn, Kaba and Backhaus edited the paper to make it consistent. Kaba admits to working on it over Thanksgiving. All told, the students spent over 300 hours working on the project.

"The students who did this are impressive," Kaba says.

Part of this feeling of satisfaction stems from the intricate nature of the Clean Air Act. "It's the most complicated area of the law I've dealt with in law school," explains Kuhn, who spent the summer predicting carbon markets in California. "The Clean Air Act has so many parts. It was created over a long period of time and involves interaction between states and federal government."

Still, she was pleased with the opportunity that this project gave her to begin to decipher the legislation. "It's been invaluable to participate in administrative law procedures since I'll be digging through comments for the rest of my life," she says.

"This is yet another excellent example of Penn Law students' commitment to public service," says Coglianese.

Kuhn concludes, "EPA will go to the legislature using these comments and will project our voices to Congress. It's exciting to have a say in what the nation should do."


Meet the student leaders in this effort:

Christina Kaba feels a strong pull toward a career in public service and hopes to work in environmental law. The second-year student became interested in environmental issues when she was a geologist working in the field for an oil company. Disillusioned, she left her graduate work in geophysics for a job in an environmental nonprofit before coming to Penn Law. She will be a summer associate at Stradley Ronon Stevens & Young in 2009.

Roland Backhaus also has a background in energy: nuclear engineering. "Although I hope that one day we'll be able to efficiently use wind, solar and geothermal power, for now nuclear is one of the better options in terms of greenhouse gases." He feels a deep-seated responsibility to protect the earth for future generations. This summer he will work on nuclear energy regulation at a firm that he hopes to join after graduation.

Kerri Kuhn studied resource management in Tanzania during college, working to balance resources between tourists, local people and wildlife, which sparked her interest in the environment. She's currently pursuing the Environmental Law Certificate and will join the environmental law practice at Morrison and Forrester in San Francisco after graduation.