Faculty Bibliography
-
Type:
Categories:
Sub-Categories:
Justice Gorsuch will have completed his seventh year on the Supreme Court when the Justices recess for the summer later this year. If those seven years are prologue, the Justice’s longer-term impact on environmental law may well exceed even the worst fears expressed by environmentalists who opposed his confirmation. Whether assessed quantitatively or qualitatively, Justice Gorsuch is a solidly conservative vote skewed against legal positions that environmentalists favor, with the potential to unsettle the entire federal administrative state upon which much of federal environmental law depends. His votes and opinions do not evince hostility to environmentalism per se, but instead reflect misgivings about the heightened roles that the national government and federal executive branch officials serve in administering environmental law. No doubt there will be instances when Justice Gorsuch’s views on cross-cutting issues of constitutional law tip in favor of particular outcomes protective of the environment, but these are likely to be the exception. Justice Gorsuch’s views on separation of powers have already proven incompatible with the efforts of the United States Environmental Protection Agency and other federal agencies to assert the kind of expansive authority necessary to meet today’s compelling environmental problems. His views on federalism are even more foreboding, especially his exceedingly narrow conception of congressional Commerce Clause authority to address environmental protection concerns. With regard to federalism, there is potential for some votes favorable to environmentalists when state and local governments, rather than the federal government, champion environmental causes. However, even that mitigating potential seems likely to be diminished in light of the Justice’s evident concern that environmental protection requirements, regardless of the sovereign imposing them, unduly burden individual liberty and private property interests.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
In West Virginia vs. EPA, a conservative majority within the Supreme Court announced this past June a sweeping ruling, traceable to the opinions of former Justice Scalia, that seriously threatens environmental law’s ability to safeguard public health and welfare. In sustaining former President Trump’s repeal of the Clean Power Plan — an ambitious Obama administration rulemaking that regulated greenhouse gas emissions from existing fossil fuel-fired power plants — the West Virginia Court insisted that there must be “clear congressional authorization” to support any significant and important rule like the Clean Power Plan. Our nation’s environmental protection laws have been enormously successfully over the past 50 years. That half century of extraordinary success has depended on a partnership between the federal legislative and executive branches, long upheld by the courts, in which Congress enacts broad, capacious statutory language that authorizes agencies such as the Environmental Protection Agency to enact pollution controls that reflects the complexities presented by evolving environmental science, the nation’s economy and constant technological innovation. Congress deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress’s own inability to anticipate and address all those complexities in the real-time basis.The West Virginia Court, however, has called into question the legal viability of that legislative and executive branch partnership by insisting that such a deliberate congressional decision to use capacious statutory language is no longer sufficient to support any significant and important rule like the Clean Power Plan. Congress must instead pass a second piece of legislation that meets the Court’s newly-coined “clear congressional authorization” standard, despite the obvious practical reality that the current Congress is incapable of doing so. The threatened upshot is the unraveling of the national government’s ability to safeguard the public health and welfare just as the United States, and all nations, faces the greatest environmental challenge of all: climate change. Under the ironic guise of promoting democracy, the branch of government least accountable to the voters has invented a sweeping doctrine of statutory interpretation — the “Major Questions Doctrine” —to place the equivalent of a constitutional straightjacket on the ability of Congress and the Executive Branch — both of which are more accountable to voters than courts — to enact laws necessary to address the nation’s most pressing public health and environmental problems. This article is divided into three parts. First the article describes the background of the West Virginia case and the Court’s ruling. Second, the article explains that, with the West Virginia ruling, Justice Scalia has achieved, six years after his passing, a degree of influence on the Court’s environmental law precedent that he never enjoyed during his three decades as a Justice on the Court. With Donald Trump’s three new appointees to the Court, the Court has finally become Scalia’s Court. Finally, the article focuses on the adverse implications of the West Virginia ruling on our nation’s ability to enact laws that can effectively address the kinds of serious threats to public health and the environment from pollution and natural resource destruction.
-
Type:
Categories:
How did environmental law first emerge in the United States? Why has it evolved in the ways that it has? And what are the unique challenges inherent to environmental lawmaking in general and in the United States in particular? Since its first edition, The Making of Environmental Law has been foundational to our understanding of these questions. For the second edition, Richard J. Lazarus returns to his landmark book and takes stock of developments over the last two decades. Drawing on many years of experience on the frontlines of legal and policy battles, Lazarus provides a theoretical overview of the challenges that environmental protection poses for lawmaking, related to both the distinctive features of US lawmaking institutions and the spatial and temporal dimensions of ecological change. The book explains why environmental law emerged in the manner and form that it did in the 1970s and traces how it developed over sequent decades through key laws and controversies. New chapters, composing more than half of the second edition, examine a host of recent developments. These include how Congress dropped out of environmental lawmaking in the early twenty-first century; the shifting role of the judiciary; long-overdue efforts to provide environmental justice to disadvantaged communities; and the destabilization of environmental law that has resulted from the election of Presidents with dramatically clashing environmental policies. As the nation’s partisan divide has grown deeper and the challenge of climate change has dramatically raised the perceived stakes for opposing interests, environmental law is facing its greatest challenges yet. This book is essential reading for understanding where we have been and what challenges and opportunities lie ahead.
-
Type:
Categories:
Sub-Categories:
Links:
Environmentalists did not cheer President Bill Clinton’s decision in May1994 to nominate then-First Circuit Judge Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court. Just the opposite. Many instead expressed serious concerns about Breyer’s impact on environmental law were he to be confirmed, and openly questioned whether a Justice Breyer might be “hazardous to our health.” This article considers whether, in light of Breyer’s actual record over the past twenty-seven years on the Court, environmentalist concerns about Breyer at the time of his nomination were realized. The article concludes they were not. Breyer was instead friendly to environmental protection concerns even if he fell shy of being an unqualified friend on the bench. In almost all of the most important environmental cases of the past twenty-seven years, he was a reliable vote joining the majority in the big cases environmentalists won — often providing the critical fifth vote. And although Justice Breyer on a handful of occasions was less a reliable vote in dissent with liberal justices sounding the alarm in the big cases environmentalists lost, in none of those cases was his vote dispositive of the outcome. For this reason, although environmentalist concerns at the time of Breyer’s nomination were reasonable, and had the potential to cause the very problems environmentalists identified, they proved largely insignificant in actual application. Finally, Justice Breyer’s actual record on the Court suggests the wisdom of rethinking what it means to be a “dream” justice for environmental law. Most simply put, the best Justice for environmental law may not be a Justice who always votes in favor of the outcome favored by environmentalists in individual cases.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
Environmental cases and cases with implications for environmental law decided by the supreme court during its 2020-21 term.
-
Type:
Categories:
Sub-Categories:
Links:
Legal scholarship has not previously considered the role of advocacy history in Supreme Court advocacy and decision making in any of its iterations. Though well know to expert Supreme Court advocates, hiding in the shadows has been how both Supreme Court advocates and the Justices themselves rely on the advocacy underlying the Court's precedent — both the written briefs and oral argument — in discerning both the meaning of the Court's prior rulings and its precedential weight. The most recently completed Supreme Court Term is emblematic of the relevance to both Supreme Court advocates and the Justices themselves of the advocacy underlying the Court’s prior rulings. It also highlights the role that advocacy history is increasingly playing in the Court's controversial debates concerning whether a prior case should be overruled. This Article seeks to fill that void in existing legal scholarship by bringing out of the shadows the role advocacy history plays at the Court.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
In County of Maui v. Hawaii Wildlife Fund, the U.S. Supreme Court held, 6-3, that the Clean Water Act requires a national pollutant discharge elimination system permit “when there is the functional equivalent of a direct discharge.” The Court also decided Atlantic Richfield Co. v. Christian, holding, 7-2, that landowners adjacent to a Superfund site were potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act. Both of these decisions surprised many, particularly given the coalition of Justices who formed the majorities. Other cases were delayed or postponed, and for the first time, the Court heard oral arguments via teleconference due to the ongoing coronavirus pandemic. On June 12, 2020, the Environmental Law Institute hosted a panel of experts that discussed what this term’s decisions and the Court’s new way of operating might bode for the upcoming term. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.
-
Type:
Categories:
Sub-Categories:
The space between jurists and advocate at the Supreme Court is only a little more than six feet during oral arguments. As counsel for the state in Massachusetts v. EPA learned, the exchange of fire over that small divide is highly penetrating and usually hostile.
-
Type:
Categories:
Sub-Categories:
When the Supreme Court announced its ruling in Massachusetts v. EPA, the decision was immediately hailed as a landmark. But this was the farthest thing from anyone’s mind when Joe Mendelson, an idealistic lawyer working on a shoestring budget for an environmental organization no one had heard of, decided to press his quixotic case. In October 1999, Mendelson hand-delivered a petition to the Environmental Protection Agency asking it to restrict greenhouse gas emissions from new cars. The Clean Air Act had authorized the EPA to regulate “any air pollutant” that could reasonably be anticipated to endanger public health. But could something as ordinary as carbon dioxide really be considered a harmful pollutant? And even if the EPA had the authority to regulate emissions, could it be forced to do so? Environmentalists urged Mendelson to stand down. Thinking of his young daughters and determined to fight climate change, he pressed on—and brought Sierra Club, Greenpeace, NRDC, and twelve state attorneys general led by Massachusetts to his side. This unlikely group—they called themselves the Carbon Dioxide Warriors—challenged the Bush administration and took the EPA to court. The Rule of Five tells the story of their unexpected triumph. We see how accidents, infighting, luck, superb lawyering, and the arcane practices of the Supreme Court collided to produce a legal miracle. An acclaimed advocate, Richard Lazarus reveals the personal dynamics of the justices and dramatizes the workings of the Court. The final ruling, by a razor-thin 5–4 margin, made possible important environmental safeguards which the Trump administration now seeks to unravel.
-
Richard Lazarus, Two Cases Counter Trend of Less Importance to Environmental Law, 36 Env't F., Nov.-Dec. 2019, at 13.
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Editor’s note: This article first appeared in the Spring 2008 issue of Insights on Law & Society. The history has not changed since first publication, and it remains an excellent overview of how politics shaped environmental policy over the twentieth century in ways that affect us now in the twenty-first century.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Justice Anthony Kennedy’s retirement in July has the potential to significantly affect the field of environmental law for years to come. The Supreme Court’s 2019 docket includes cases that cover a litany of environmental issues, and his replacement will play a key role. For the past three decades, Justice Kennedy was a crucial swing vote on a variety of issues, including the 5-4 decision in Massachusetts v. EPA and 4-1-4 decision in Rapanos v. United States. These examples illustrate the changes that could lie ahead. On July 18, 2018, ELI held an expert panel exploring Justice Kennedy’s influence on environmental law, what his departure could mean for the future, and the nomination of Judge Brett Kavanaugh to the Court. This article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Richard J. Lazarus, Will 2018 Be the Year of the Bird? If So, Not Necessarily a Good One, Env't F, Mar.-Apr. 2018, at 13.
Type:
Categories:
Sub-Categories:
-
Richard J. Lazarus, Justice Gorsuch Faces Case Where Neither Choice Entirely Satisfactory (Supreme Court Justice Neil Gorsuch, hearing of New York v. EPA), Env't F., Jan.-Feb. 2018, at 13.
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Richard J. Lazarus, What Happens When a New White House Opposes Ongoing Litigation?, Env't F., Jan.-Feb. 2017, at 13.
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
This chapter in Business and the Roberts Court documents the emergence of a highly specialized, elite Supreme Court bar that disproportionately represents business interests. The Court grants the petitions filed by the expert members of the bar at a significantly higher rate and they also prevail on the merits more frequently. This chapter documents the extent of the modern bar’s domination of the Court’s docket, arguments, and rulings and considers the extent to which business interests that serve as the bar’s primary clients are enjoying heightened success before the Court as a result.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Richard J. Lazarus, Reviewing the Clean Power Plan – and the Fate of the Paris Agreement 33 Env't F., Mar.-Apr. 2016, at 13.
Type:
Categories:
Sub-Categories:
-
Richard J. Lazarus, Senator Edmund Muskie’s Enduring Legacy in the Courts, 67 Maine L. Rev. 239 (2015).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Favorite
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Twenty-five years used to seem like an exceedingly long time. It certainly did when I was graduating from law school and not yet twenty-five. My perspective on time, however, has (naturally) since evolved, much as environmental law itself and the controversies surrounding it have, too, evolved. The contrast between environmental law twenty-five years ago and environmental law today is remarkable and makes clear that environmental law and lawmaking were changing in fundamental ways a generation ago, but those changes are revealed only now with the aid of hindsight. To be sure, the statutory texts of domestic environmental law are strikingly the same. And yet, it is that static quality that ironically underscores how much has changed. A generation ago, environmental law scholars would routinely comment on how the only constant in environmental law was change: its dynamic nature. Congress was regularly passing significant statutory amendments in what was largely a constructive iterative lawmaking process, involving federal and state legislatures, agencies, and courts. Some might have worried that the change was too great—making it too difficult for the regulated community to adjust and invest. Whether any such concern then was justified, the concern now is quite different: too little change rather than too much. And the static nature of environmental lawmaking here in the United States stands in sharp contrast to the dynamic nature of environmental lawmaking globally. The United States, once a lauded pioneer, now very much risks being left behind. This essay is written in celebration of the 25th Annual Meeting of the National Association of Environmental Law Societies at the University of Michigan Law School and in recognition of Michigan Law’s hosting of the Association’s inaugural meeting in 1988. The essay focuses on three topics in reflecting on the changes in environmental law and environmental lawmaking since the Association’s first meeting. The first is Congress and the politics of environmental law. The second topic concerns the courts and the changing relationship of constitutional law to environmental law. And, finally, the essay considers the contrasting nature of the challenges that environmental lawyers and environmental law face today as compared to twenty-five years ago.
-
Favorite
Type:
Categories:
Sub-Categories:
The Supreme Court has decided seventeen cases arising under the National Environmental Policy Act (NEPA) and the government has not only won every case, but won almost all of them unanimously. Commentators routinely cite the drubbing that environmentalists have received in NEPA cases as evidence of the Court's hostility toward environmental law and environmentalism. But a close look at the cases, extending beyond what appears in the U.S. Reports, suggests a very different and more nuanced story. First, as revealed by the written briefs and oral arguments of the advocates and by the internal deliberations of the Justices in those cases, the government's "perfect record" came at a significant cost: the Solicitor General abandoned many lower court arguments and made major concessions about NEPA 's requirements. Consequently, the Court's rulings frequently included language that favored environmentalists in future litigation. Indeed, in some instances, the NEPA plaintiffs won more than they lost. Second, the NEPA cases underscore the difference that skilled advocacy makes on either side of the lectern-by the advocates before the Court and by the Justices during the Court's own internal deliberations. The significance of a Court opinion turns on the particular wording of its reasoning far more than on whether it ends with an "affirmed" or "reversed." And the better advocates before and within the Court are exceedingly effective at shaping that reasoning. In NEPA cases, the Solicitor General has generally outlitigated NEPA plaintiffs, and, within the Court, no Justice was more influential than Justice, and later Chief Justice, William Rehnquist. NEPA 's story before the Supreme Court is, therefore, not a happy one for NEPA enthusiasts, but the story is not nearly as dismal as routinely supposed. The Justices may have been unappreciative of NEPA 's potential, but they have not been systematically hostile to its requirements. To the extent, moreover, that NEPA precedent has been less rather than more favorable to NEPA plaintiffs, much of this is best explained by the Solicitor General's comparative strategic and expertise advantage before the Court and Chief Justice Rehnquist's heightened skills on the bench compared to those, like Justice William Douglas, who were more sympathetic to NEPA's mandate.