ENVIRONMENTAL PRACTICE SKILLS, METHODS AND CONTROVERSIES: SITING AND PERMITTING OF A WIND FARM AS A CASE STUDY Spring 2015 Thursdays, 4:30 p.m. - 7:30 p.m. WCC 3012 [confirm location] Clinical Professor Wendy B. Jacobs WCC-4121 Phone 617-496-3368 wjacobs@law.harvard.edu Faculty Support: Jacqueline A. Calahong WCC-4119 Phone 617-496-2058 jcalahong@law.harvard.edu This course teaches the actual practice of environmental law, including mechanisms for raising and resolving controversies. We will examine – and work through -- a wind farm project from a variety of perspectives and meet with people who represent some of these interests: regulatory, community, NGO and private sector. The emphasis will not be on mastering the substance of the various environmental laws that are triggered (although some of that will be necessary), but instead on the practical skills and knowledge necessary to: identify the environmental impacts of a project; identify, parse and apply relevant statutes and regulations; analyze mechanisms for mitigating project impacts and managing controversies; identify the permits and approvals needed for a project; select and hire environmental scientists and experts to support or oppose a project; and, defend (or challenge) a project in administrative and judicial proceedings. Students in this class will learn how projects proceed through environmental review, challenges, and permitting. Depending on the time available and level of class interest, we will also look at some of the project financing issues. The course is practical, hands-on and participatory. Students will develop and apply the skills and methods needed to site a wind farm through class discussions, problem solving, and role-playing exercises. The wind farm is a proxy for any project that has both positive and adverse environmental impacts and that must work its way through multiple types of administrative and judicial proceedings and negotiation. There is no final exam. There will be short written and oral exercises through the semester and, at the end of the semester, a short final paper that focuses on ethical issues raised by the practice of environmental law. Grading will be based on the quality of class participation as well as of the exercises and final paper. REQUIREMENTS AND GRADING Timely submittal of written exercises and active participation in class discussions, exercises, and presentations are minimum requirements. There is no final examination for this course; there is a final paper of about 12 double-spaced pages. Grades will be based on the quality, creativity, and timeliness of the written work and on preparation for and quality of participation in class exercises and discussions. The organization and sequence of the course is presented in Section I, below. The classes build on each other. The readings and homework assignments are described in Section II and will be posted on the course iSite on MyHLS. While the order of the classes is largely set, there may need to be adjustments to accommodate guest speakers and to confirm our tour of the wind turbine testing center in Charlestown. I. CLASS TOPICS Class 1: January 29 Course overview; discussion of basics of wind energy; role of attorneys in wind farm and other complex projects. Class 2: Feburary 5 Constructing a wind farm; environmental impacts; brief look at on-shore wind farms; statutory framework for offshore wind (review of homework); begin statutory parsing; introduction of case study. Class 3: February 12 Student presentations of statutes; discussion of presentation styles and substance; techniques for statutory parsing. Class 4: February 19 Overview of wind farm development projects; environmental reviews, analysis of alternatives, and permitting timelines; strategies for coordinating and streamlining; communicating with clients and the public. Class 5: February 26 Role of experts and consultants; role of nongovernmental organizations; guest speaker (Sue Reid, Vice President and Director of the Conservation Law Foundation, Boston, MA); purpose and power of comments on proposed government actions. Class 6: March 5 TENTATIVE – awaiting confirmation: Visit and tour the wind turbine testing center in Charlestown with Alicia Barton, Chief Executive Officer of the Massachusetts Clean Energy Center. Class 7: March 12 Immersion in technical and scientific documents; discuss public hearing process; outline comments for public hearing. SPRING BREAK – NO CLASS ON THURSDAY, MARCH 19 Class 8: March 26 Mock public hearing with student presentations of comments; begin discussion of federal v. state jurisdiction and tensions; meet with state regulators and policymakers (invited – awaiting confirmation). Class 9: April 2 Discussion of contracting with experts and consultants. Class 10: April 9 More on contracting with experts and consultants; begin work on direct and cross-examination of experts. Class 11: April 16 Discussion of ethical issues in environmental lawyering; discussion of project costs and financing with Dennis Duffy, Vice President of Energy Management Inc. (owner of Cape Wind). Class 12: April 23 Direct and cross-examination of an actual expert. II. HOMEWORK ASSIGNMENTS & READINGS [WILL NEED TO CHANGE DEADLINES FOR 2015!!] Pay careful attention to the deadlines for assignments!! All written assignments should be uploaded to the Assignment Dropbox on the course iSite by the specified deadline. If for some reason you are unable to access the Assignment Dropbox, please email your written assignment as a word document (NOT a pdf) to wjacobs@law.harvard.edu and jcalahong@law.harvard.edu. Copies of all readings will be posted on the iSite under Course Materials for this course. Thursday, January 30th by 4:30pm: Complete the following mandatory readings before class: • NREL: Offshore Wind Power Overview, Industry, and Technology • Introductory Slides [Additional optional readings and reference materials for use throughout the semester are posted under Course Materials in the file labeled “Optional Reference Materials for Use During the Semester”] Tuesday, February 4th by noon: Submit answers to the Team Homework Questions. Read the posted statutes and use them to answer the Homework Questions. The purpose of this exercise is to practice reading and interpreting the law yourselves. DO NOT do any research of secondary sources. You do not need to check any law that is not on the list provided to you. For each homework question, support your answer with an explanation (no more than a few sentences) and relevant statutory citation(s). You will work in teams to answer the homework questions – please make sure to put all team member names on your submittal. Although you are working in teams, each of you needs to be familiar with the laws and understand the answers to the questions. Therefore, you need to educate each other! Tuesday, February 11th by noon: Submit completed statutory chart. For each statute listed on the chart, indicate whether or not it applies to the wind farm project proposed by Gust Power (re-read the hypo) and include the specific statutory citation(s) and fact(s) that support your answer. You will be assigned to a different team. Tuesday, February 18th by noon: Prepare and submit a graphic depiction of the process for obtaining a particular permit, approval, or other necessary government decision. You are strictly limited to 2-3 slides and legible font sizes! The purpose of the exercise is to communicate complex information accurately with as few words as possible. Be sure to consider the facts provided in the Gust Power hypothetical to guide your legal analysis and presentation. Each student will be assigned one legal process to analyze and depict. Tuesday, February 25th by noon: Using the Gust Power hypothetical and the laws with which we have been working, submit answers to the questions together with a list of experts or expertise you will need to help develop and advocate your position. Wednesday, March 5th by noon: Submit to iSite 2-4 questions for the top state energy regulators to answer. Review the posted technical documents prior to the March 6 tour of the Wind Technology Testing Center. Wednesday, March 12th by noon: • Review the posted sections of the Draft Environmental Impact Statement (DEIS) and my instructions (emailed to you; copy posted on the iSite in “Homework Assignments” under “Course Materials”). Post up to six (6) questions about the DEIS you would like to discuss in class. • Bring to class on March 13th a preliminary outline of your comments (based on the topic and perspective assigned to you). You may submit your written comment letter anytime before April 3. The letter should be no more than 12 double-spaced pages supported by statutory and regulatory citations, the DEIS, and any other technical documents you been provided. We will discuss how to prepare comment letters during class on March 13th. Thursday, March 27th: During class, each student will present his/her comments orally (without reading them). Tuesday, April 1st by noon: Review sample contract and identify up to 10 sections that require revision and explain why. [No research: Just apply your common sense, your first-hand experience with contracts and contract law, and the perspective of Gust Power]. Tuesday, April 8th by noon: Read the posted cases and post your recommended revisions to the contract using track changes. [You will change ONLY the substance, NOT the format of the document!!]. Tuesday, April 15th by noon: Submit draft of direct or cross-examination. Tuesday, April 22nd: TBD. Friday, May 16th: Submit final essay.