Richard J. Lazarus

Howard and Katherine Aibel Professor of Law

Biography

Richard Lazarus is the Howard and Katherine Aibel Professor of Law at Harvard University, where he teaches environmental law, natural resources Law, Supreme Court advocacy, and torts. Professor Lazarus has represented the United States, state and local governments, and environmental groups in the United States Supreme Court in 40 cases and has presented oral argument in 13 of those cases. His primary areas of legal scholarship are environmental and natural resources law, with particular emphasis on constitutional law and the Supreme Court. He has published two books, The Making of Environmental Law (U. Chicago 2004), and Environmental Law Stories (Aspen Press, co-edited with O. Houck 2005). He was also the principal author of Deep Water - The Gulf Oil Disaster and the Future of Offshore Drilling (GPO 2011), which is the Report to the President of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling Commission, for which he served as the Executive Director. The Commission was charged with investigating the root causes of the oil spill in the Gulf of Mexico in the Gulf of Mexico in 2010 and recommending changes in law and policy to reduce the risk of future spills and to mitigate their impacts. Prior to joining the Harvard law faculty, Professor Lazarus was the Justice William J. Brennan, Jr., Professor of Law at Georgetown University, where he also founded the Supreme Court Institute. He graduated from Harvard Law School in 1979 and has a B.S. in chemistry and a B.A. in economics from the University of Illinois.

Areas of Interest

Richard J. Lazarus, The (Non)Finality of Supreme Court Opinions, 128 Harv. L. Rev. 540 (2014).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Richard J. Lazarus, The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and A Peek Behind the Curtains 100 Geo. L.J. 1507 (2012).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Supreme Court of the United States
,
Administrative Law & Agencies
,
Courts
Type: Article
Abstract
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.
Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153 (2009).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Article
Richard J. Lazarus, Advocacy Matters: Transforming the Court by Transforming the Bar, in Business and the Roberts Court (Jonathan H. Adler ed., 2016).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Legal Services
Type: Book
Abstract
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.
Richard J. Lazarus, Food Law is the Next Great Area for Environmental Litigation 33 Envtl. F., Jan.-Feb. 2016, at 13.
Categories:
Environmental Law
,
Civil Practice & Procedure
,
Health Care
Sub-Categories:
Litigation & Settlement
,
Food & Drug Law
Type: Article
Richard J. Lazarus, Legacy of an Environmental Skeptic 33 Envtl. F. 42 (2016).
Categories:
Government & Politics
,
Environmental Law
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Richard J. Lazarus, Reviewing the Clean Power Plan – and the Fate of the Paris Agreement 33 Envtl. F., Mar.-Apr. 2016, at 13.
Categories:
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Natural Resources Law
,
Climate Change
,
International Law
Type: Article
Richard J. Lazarus, Senator Edmund Muskie’s Enduring Legacy in the Courts, 67 Maine L. Rev. 239 (2015).
Categories:
Legal Profession
,
Environmental Law
Sub-Categories:
Climate Change
,
Biography & Tribute
Type: Article
Richard J. Lazarus, The Opinion Assignment Power, Justice Scalia's Un-Becoming, and UARG's Unanticipated Cloud Over the Clean Air Act 39 Harv. Envtl. L. Rev. 37 (2015).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Natural Resources Law
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Richard J. Lazarus, Back to "Business" at the Supreme Court: The "Administrative Side" of Chief Justice Roberts 129 Harv. L. Rev. F. 33 (2015).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Richard J. Lazarus, California Dreamin’: Court is the Leader 32 32 Envt’l F., May/June 2015, at 14.
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Courts
,
State & Local Government
Type: Article
William W. Buzbee, Ann E. Carlson, Megan M. Herzog, Jody Freeman, Richard J. Lazarus, Thomas O. McGarity, Craig N. Oren, Richard L. Revesz & Cecilia Segal, Climate Regulation Under the Clean Air Act in the Wake of Utility Air Regulatory Group v. EPA, 39 Harv. Envtl. L. Rev. 1 (2015).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Article
Richard J. Lazarus, Consider Requiring Cost-benefit Test? (pending Michigan v. EPA before the US Supreme Court) 32 Envt’l F., Mar./Apr. 2015, at 12.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Richard J. Lazarus, Flexing Agency Muscle?, 48 Ga. L. Rev. 327 (2014).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Richard J. Lazarus, Norfolk & Western Railway v. Ayers, 538 U.S. 135 (2003) 127 Harv. L. Rev. 451 (2013).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Richard J. Lazarus, Environmental Law at the Crossroads: Back 25, Looking Forward 25, 2 Mich. J. Envtl. & Admin. L. 267 (2013).
Categories:
Environmental Law
,
Constitutional Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Courts
,
Administrative Law & Agencies
,
Legal History
Type: Article
Abstract
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.
Richard J. Lazarus, The Power of Persuasion Before and Within the Supreme Court: Reflections on NEPA's Zero for Seventeen Record at the High Court, 2012 U. Ill. L. Rev. 231 (2012).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Supreme Court of the United States
,
Administrative Law & Agencies
Type: Article
Abstract
This Article reviews the remarkable string of seventeen straight losses that environmental plaintiffs have suffered in Supreme Court cases arising under the National Environmental Policy Act (NEPA) and challenges the accepted wisdom that these rulings reflect the Court's hostility toward environmental protection. A close review of the cases, including the advocacy before the Court in each case, and the deliberations within the Court during its decision-making process, reveals instead a far more nuanced and less one-sided understanding of the rulings, and underscores the significance of effective advocacy both before the Court by arguing counsel and within the Court by the Justices themselves. Binary analysis that treats Supreme Court rulings as either "wins" or "losses" misapprehends the nature of judicial rulings and the essential role served by legal reasoning. Not all losses are created equal. Some "losses" are the product of concessions made by the prevailing party that amount to significant wins by the purported losing party. And opinions that end by reversing favorable lower court judgments may nonetheless include language highly favorable to environmental plaintiffs in future litigation. To be sure, NEPA plaintiffs have not fared well before the Court and have lost some significant arguments there, but their record is far less dismal or one-sided as is routinely supposed. Finally, the NEPA cases do suggest that there is an increasing risk that the Court's docket and rulings are being skewed in favor of commercial interests because of the disproportionate ability of those interests to retain expert Supreme Court advocates. In recent years, the private Supreme Court Bar has enjoyed a significant resurgence, marked by the emergence of a significant group of highly effective lawyers specializing in Supreme Court advocacy. Although the development of such expertise is generally a positive development for the Bar and the Court, it makes it all the more important that such expertise be available to opposing viewpoints on important legal issues that the Court is deciding.
Richard J. Lazarus, Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling, Report to the President of the United States (U.S. Gov't Printing Office 2011).
Categories:
Environmental Law
Sub-Categories:
Disaster Law
,
Oil, Gas, & Mineral Law
,
Energy & Utilities Law
Type: Other
Richard J. Lazarus, Climate Change Law In and Over Time, 2 San Diego J. Climate & Energy L. 29 (2010)
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Article
Richard J. Lazarus, Docket Capture at the High Court 199 Yale L.J. Online 89 (2009).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Supreme Court of the United States
Type: Article
Richard J. Lazarus, First Annual Climate & Energy Law Symposium: Federal Preemption of State Prerogative-California in the Face of National Climate Policy, 1 San Diego J. Climate & Energy L. 1 (2009).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Energy & Utilities Law
,
Federalism
,
State & Local Government
Type: Article
Richard J. Lazarus, Foreword to A Good Quarrel: America's Top Reporters Share Stories from Inside the Supreme Court (Timothy R. Johnson & Jerry Goldman eds., 2009).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Supreme Court of the United States
Type: Book
Richard J. Lazarus, Advocacy Matters Before and Within the U.S. Supreme Court: Transforming the Court by Transforming the Bar 96 Geo. L.J. 1487 (2008).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
Type: Article
Richard J. Lazarus, Environmental Law, in Encyclopedia of the United States Supreme Court (David S. Tanenhaus ed., 2008).
Categories:
Environmental Law
Type: Book
Lois J. Schiffer & Richard J. Lazarus, The Environment and Natural Resources Division of the United States Department of Justice: Planning for the Transition to the Next Administration, 2 Harv. L. & Pol’y Rev. 269 (2008).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Natural Resources Law
,
Administrative Law & Agencies
,
Executive Office
Type: Article
Richard J. Lazarus, Environmental Law After Katrina: Reforming Environmental Law by Reforming Environmental Lawmaking, 81 Tul. L. Rev. 1019 (2007).
Categories:
Environmental Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Disaster Law
,
Administrative Law & Agencies
,
Legal Reform
Type: Article
Abstract
Karina’s overriding lesson for environmental law is no less than our environmental lawmaking institutions require fundamental reformation. Otherwise, the nation’s tragic failure not only to enact laws that anticipate the obvious risks presented to the Gulf Region by hurricanes, but perversely to increase those risks by destroying the ecosystem’s natural protections, will inevitably be repeated with even more devastating results.
Richard J. Lazarus, The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court 57 Hastings L.J. 759 (2006).
Categories:
Government & Politics
,
Property Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Property Rights
Type: Article
Richard J. Lazarus, Congressional Descent: The Demise of Deliberative Democracy in Environmental Law, 94 Geo. L.J. 619 (2006).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
Type: Article
Abstract
In recent years, the formal environmental lawmaking dimension of Congress has become effectively moribund. Earlier Congresses were, by contrast, celebrated for enacting sweeping, demanding environmental laws and for passing significant and increasingly detailed amendments in response to subsequent developments in executive branch agencies, federal courts, and the states. Now, Congress passes almost no coherent, comprehensive environmental legislation and displays no ability to deliberate openly and systematically in response to changing circumstances and new information. Instead, when Congress does exercise its lawmaking authorities to influence environmental protection policy, it does so primarily through the appropriations process: the sphere of its responsibility that, ironically, has proven to be the least conducive to the kind of deliberative democracy that justifies legislative supremacy in environmental lawmaking. This Article describes the ascent and descent of Congress in environmental law, discusses the troublesome implications for environmental law due to the increasing dominance of the appropriations process in congressional lawmaking, identifies the major causes of these developments, and concludes by offering some possibilities for congressional reform.
Environmental Law Stories (Richard J. Lazarus & Oliver Houck eds., 2005).
Categories:
Environmental Law
Sub-Categories:
Agriculture Law
,
Climate Change
,
Land Use
,
Natural Resources Law
Type: Book
Abstract
Environmental Law Stories feature characters as diverse as community activists, small farmers, big businesses, dedicated scientists, skilled lawyers, strong-willed judges, and Presidents of the United States. Four of the ten selected cases established the field of environmental law, three others refined it, and the final three have sought to limit its effectiveness and reach. This selection mirrors the development of the field of environmental law, from the first, heady days of its creation to its current conflicts with other laws and values, including some embedded in the Constitution.
Richard J. Lazarus, Human Nature, the Laws of Nature, and the Nature of Environmental Law, 24 Va. Envtl. L.J. 231 (2005).
Categories:
Environmental Law
Sub-Categories:
Natural Resources Law
Type: Article
Richard J. Lazarus, The Nature of Environmental Law and the U.S. Supreme Court, in Strategies for Environmental Success In An Uncertain Judicial Climate 9 (Michael Allan Wolf ed., 2005).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Courts
,
Supreme Court of the United States
Type: Book
Richard J. Lazarus, The Making of Environmental Law (Univ. Chi. Press 2004).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Book
Abstract
In The Making of Environmental Law, Richard J. Lazarus offers a new interpretation of the past three decades of this area of the law, examining the legal, political, cultural, and scientific factors that have shaped—and sometimes hindered—the creation of pollution controls and natural resource management laws. He argues that in the future, environmental law must forge a more nuanced understanding of the uncertainties and trade-offs, as well as the better-organized political opposition that currently dominates the federal government. Ranging widely in his analysis, Lazarus not only explains why modern environmental law emerged when it did and how it has evolved, but also points to the ambiguities in our current situation. As the field of environmental law "grays" with middle age, Lazarus's discussions of its history, the lessons learned from past legal reforms, and the challenges facing future lawmakers are both timely and invigorating.
Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. Rev. 703 (2000).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Supreme Court of the United States
,
Federalism
Type: Article

Academic Appointment and Employment History

Bar Admissions

Board Memberships

Education History

Honors and Awards

Current Courses

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Additional Information

Law School Administrative Work

Member, Admissions Committee (Harvard)

Member, Harvard University Greenhouse Gas Reduction Task Force

Member, Harvard University Center for the Environment Faculty Advisory Committee

Faculty Affiliate, Harvard University John F. Kennedy School Regulatory Policy Program

Chair, Academic Standards, Curriculum and Teaching Committee (Georgetown) (2009-2010)

Chair, Admissions Committee (Georgetown) (2006-2007, 2007-2008)

Member, Admissions Committee (Georgetown) (2000-2001, 2001-2002, 2003-2004, 2005-2006)

Chair, Career Services Committee (Georgetown) (1997-1998, 1998-1999)

Member, Dean Search Committee (Georgetown) (2003-2004)

Chair Lateral Appointments, Faculty Appointments Committee (Georgetown) (2004-2005)

Member, Faculty Appointments Committee (Georgetown) (2001-2002, 2007-2008)

Member, Long Range Planning/Self Study Committee (Georgetown) (1997-1998, 1998-1999, 2000-2001, 2007-2008)

Advisor, Public Interest Law Scholars (Georgetown) (1996-2011)

Member, Special Committee for the Review of the Public Interest Law Scholars Program (Georgetown) (2001-2002, 2002-2003)

Faculty Co-Director, Supreme Court Institute (Georgetown) (2004-2011)

Faculty Director, Supreme Court Institute (Georgetown) (1999-2004)