Faculty Bibliography
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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.
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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).
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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.
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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.
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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.
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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).
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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.
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The purpose of this Essay is to propose and discuss the possibility that the nation currently faces another, albeit very different, "republican moment" that may well test the future of environmental protection laws in the United States. This new "moment" has as its modifier an uppercase "Republican" rather than a lowercase "republican." While the latter "republican" invokes the political tradition referred to as "civic republicanism," the former "Republican" refers instead to the current National Republican Party. The "moment" facing environmental law is the virtually unprecedented ascendancy of the Republican Party in all three branches of the federal government.
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In this essay, Professor Lazarus discusses former NAACP director the Rev. Dr. Benjamin Chavis's characterization of U.S. environmental policy as "environmental racism." He first justifies this provocative topic choice and then suggests that Chavis's allegation has transformed environmental law. Professor Lazarus next discusses the details of this transformation, arguing that Rev. Chavis has essentially reshaped the way environmental law and justice are conceived. He offers examples of various environmental programs and social and political effects traceable to Chavis's environmental racism comment. Finally, the conclusion provides some of the author's ruminations about the future of environmental law and policy.
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This article explores a series of hypotheses regarding environmental law scholarship based on an empirical review. The article examines over a thirty year time horizon such diverse aspects of environmental law scholarship as the sheer amount of scholarship, evolutionary trends in the topics for scholarly inquiry, number of environmental law courses and environmental law professors, proliferation of environmental law journals, relative rates of publication of environmental law scholarship in the nation's most prestigious law reviews, and the identity and relative ranking of those law reviews that published the articles widely viewed as the "best." The article concludes that important lessons about the nature of environmental law scholarship lurk within these numbers. The article offers some of those lessons by making a series of findings and then proffering deliberately provocative, albeit speculative, explanations for them. What commences as a seemingly quantitative undertaking ultimately becomes a more qualitative assessment of legal education and what may be too often missing in current environmental legal scholarship. Perhaps one of the more surprising (or at least unanticipated) finding is that certain prestigious law review, most notably the Harvard Law Review and until quite recently the University of Chicago Law Review, have historically published significantly fewer environmental law articles than have their peer law reviews or law reviews in general. The paucity of published scholarship stands in sharp contrast to environmental law's remarkable and dramatic emergence during that same time period. The final part of the article proposes a series of explanatory theories for the varied findings, including the Harvard Law Review's remarkably low rate of publication of environmental law scholarship. Interestingly, there is reason to believe that the latter phenomenon reflects the Harvard Law School's implicit signaling to its student body of scholarly value (or the lack thereof) through the law school's curricular offerings and the areas of its own faculty expertise in teaching and scholarship.