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Richard Lazarus

  • Cases in Brief: Lujan v. Defenders of Wildlife with Richard Lazarus

    April 29, 2022

    In this installment of “Cases in Brief,” Harvard Law Professor Richard Lazarus ’79 discusses the landmark citizen-suit case, Lujan v. Defenders of Wildlife (1992), which hindered the ability to bring environmental citizen suits for much of the 1990s.

  • A globe of planet earth on the background of blurred lights of a city.

    Inspiring change

    April 22, 2022

    On Earth Day, we highlight some of the work being done by Harvard Law students, scholars, clinics, and programs to address some our most pressing environmental issues.

  • Suing over climate change: Taking fossil fuel companies to court

    April 18, 2022

    If climate change were a disaster film, it would likely be accused of being too over-the-top: wildfires reducing entire towns to ashes, hurricanes swamping cities, droughts draining lakes and withering fields, and raging oceans redrawing the very maps of our coasts. And now, many cities and states are asking, who's going to pay for all of this? ... Richard Lazarus, who teaches environmental law at Harvard, said, "The scope of the problem is one that requires really a national approach. Cities and counties and states are being the ones left with the problem when the federal government doesn't step up to the plate." Lazarus said even if the cities and states prove the fossil fuel companies deceived the public about climate change, it doesn't necessarily mean they will win: "They've done a really good job of showing that the oil and gas industry, I think, engaged in fraudulent activity. The challenge will be causation, to prove that their fraudulent behavior is what prevented the United States from passing the laws we needed to reduce those greenhouse gas emissions."

  • Supreme Court hints at constraining Biden on climate

    March 3, 2022

    The Supreme Court looks likely to limit the executive authority to issue sweeping climate rules without new legislation, but it's unclear if they'll unite around broader limits on regulatory power. Catch up fast: The high court held arguments Monday in related cases about now-defunct regulations to curb carbon emissions from the electricity sector, the second-largest U.S. source of heat-trapping gases. A few takeaways: 1. New limits appear likely. Harvard Law professor Richard Lazarus said there appear to be six votes to "align" the case with recent rulings against the federal eviction moratorium and vaccine mandates. That would prompt the court to "sharply cut back on EPA’s authority to reduce greenhouse gas emissions from existing coal-fired power plants," he said via email.

  • In EPA Supreme Court case, the agency’s power to combat climate change hangs in the balance

    February 28, 2022

    President Biden’s ambitious plans to combat climate change, blocked by an uncooperative Congress, face an equally tough test next week at the Supreme Court. With the court’s conservative justices increasingly suspicious that agencies are overstepping their powers, the case’s outcome could not only reshape U.S. environmental policy but also call into question the authority of regulators to tackle the nation’s most pressing problems. ... Biden’s team has yet to issue its own plan for the power sector. For that reason, environmentalists took it as an “earthquake” when the Supreme Court accepted the case last fall, said Harvard Law School professor Richard Lazarus. It appeared to signal a move on the part of the court’s conservatives to delineate — and probably trim — the EPA’s powers before there were even regulations to review. ... The policy that sparked this battle — the Clean Power Plan — is now moot, since the market has done what regulators could not. “The targets were achieved way in advance, more than a decade before they would have been required,” said Carrie Jenks, executive director of Harvard’s Environmental & Energy Law Program.

  • Supreme Court Will Hear Biggest Climate Change Case in a Decade

    February 28, 2022

    In the most important environmental case in more than a decade, the Supreme Court on Monday will hear arguments in a dispute that could restrict or even eliminate the Environmental Protection Agency’s authority to control the pollution that is heating the planet. ... “If the court were to require the E.P.A. to have very specific, narrow direction to address greenhouse gases, as a practical matter it could be devastating for other agencies’ abilities to enact rules that safeguard the public health and welfare of the nation,” said Richard Lazarus, a professor of environmental law at Harvard. “It would restrict the enactment of regulations under any host of federal statutes — OSHA, the Clean Water Act, hazardous waste regulation. In theory it even could limit the Fed’s authority to set interest rates.” ... “The regulated industry itself is saying that they are not fighting the authority of E.P.A.,” said Jody Freeman, a lawyer at Harvard and former climate official in the Obama White House. “The court will be attentive, I think, to what the industry says,” she said, noting that in a recent case over the Biden administration’s Covid vaccine mandate for large employers, the Supreme Court blocked the mandate except in the case of health care workers, who requested the regulation.

  • With Breyer’s Exit, a Farewell to Marshmallow Guns and Tomato Children

    February 2, 2022

    Justice Stephen G. Breyer has a mild temperament, and he writes cautious opinions. But his questions from the bench can be wild flights of fancy, enlivening the proceedings with musings about marshmallow guns, aspirin fingers, tomato children and the Pussycat Burglar. In an affectionate tribute issued soon after Justice Breyer announced last week that he planned to retire, Chief Justice John G. Roberts Jr. noted this striking aspect of his colleague’s work. ... “Breyer’s unique signature at oral argument — which challenged and often befuddled lawyers appearing before the bench — was the sheer length of his questions,” Richard J. Lazarus, a law professor at Harvard, wrote in an essay published on Friday.

  • Judges Increasingly Demand Climate Analysis in Drilling Decisions

    January 31, 2022

    A judge’s decision this week to invalidate the largest offshore oil and gas lease sale in the nation’s history, on grounds that the government had failed to take climate change into consideration, shows that regulatory decisions that disregard global warming are increasingly vulnerable to legal challenges, analysts said Friday. ... “This would not have been true 10 years ago for climate analysis,” said Richard Lazarus, a professor of environmental law at Harvard University. He said it is “a big win” that courts are forcing government agencies to include “a very robust and holistic analysis of climate” as part of the decision-making when it comes to whether or not to drill on public lands and waters.

  • The Roberts Court, April 23, 2021

    Pragmatic Justice

    January 27, 2022

    Supreme Court Justice Stephen Breyer ’64, who focused on the consequences of his judicial decisions, has announced that he will step down after more than a quarter century on the Court.

  • Supreme Court Justice Stephen Breyer Announces His Retirement At The White House

    On the Court, Breyer had a ‘deeply thoughtful, learned, humane, and pragmatic approach’

    January 27, 2022

    In the wake of the news that Supreme Court Associate Justice Stephen G. Breyer ’64 will retire at the end of the current term, Harvard Law School faculty members offer their thoughts on his tenure, legacy, and how the nation’s highest court could change after his departure.

  • Stephen Breyer

    Justice Stephen Breyer — a passionate pragmatist

    January 27, 2022

    Richard Lazarus ’79, a Supreme Court advocate and the Howard and Katherine Aibel Professor of Law, reflects on Justice Breyer's "striking pragmatism" — and passion — during his 28 years on the Court.

  • Two people walking in a hallway with other people walking along behind and next to them.

    Weighing President Biden’s first year

    January 18, 2022

    In this series, Harvard Law experts turn a critical eye to the Biden administration’s efforts on health care, the economy, criminal justice reform, and other areas important to Americans — and share their thoughts on its agenda for the future.

  • Student fixing in the wall a poster about environmental issues - There is no planet B

    Weighing President Biden’s first year: The environment

    January 13, 2022

    Harvard Law Professor Richard Lazarus says Biden has ‘quickly and effectively’ reversed many of former President Trump’s executive orders on the environment, but Congress ‘presents a major obstacle’ to the new administration.

  • The Supreme Court Case That Could Upend Efforts to Protect the Environment

    January 11, 2022

    Next month, the Supreme Court will hear oral arguments in a case involving an Obama-era power-plant rule that’s no longer in effect, and never really was. The Court has agreed to hear so many high-profile cases this term, on subjects ranging from abortion to gun rights to vaccine mandates, that this one—West Virginia v. Environmental Protection Agency—has received relatively little attention beyond legal circles. But its potential ramifications are profound. At a minimum, the Court’s ruling on the case is likely to make it difficult for the Biden Administration to curtail greenhouse-gas emissions. The ruling could also go much further and hobble the Administration’s efforts to protect the environment and public health. ... “The whole model of the New Deal state is that Congress passes laws that delegate to administrative agencies sweeping regulatory power to address the public health and welfare of the American people,” Richard Lazarus, a professor at Harvard Law School, explained. “And they don’t lay out the details, because they couldn’t possibly do that.” These days, of course, Congress is barely even able to pass laws. It hasn’t approved a significant piece of environmental legislation since 1990. The practical effect of the Court’s insisting that it lay out its intentions in detail before executive agencies issue regulations to address new threats—major or otherwise—would be to prevent those rules from being written. This, presumably, is exactly what the coal companies want, and what the public—in red states, and also in blue—should be terrified of.

  • The Ghost of Anne Gorsuch Burford

    January 11, 2022

    With the Supreme Court now set to hear in February a major case over the regulatory powers of the Environmental Protection Agency, some are already…

  • Vaccine mandate regulations are under the Supreme Court’s microscope

    January 7, 2022

    Another supreme battle at the U.S. Supreme Court Friday: In a special session, the justices are hearing expedited arguments in cases challenging two major Biden administration regulations aimed at increasing the number of vaccinated workers. The cases are in a preliminary posture, but how the court rules will very likely signal how these issues are ultimately resolved. ... "I think this is a case that's a test of how truly radical or conservative this court is or is not," says Harvard Law professor Richard Lazarus. "The question is whether the Supreme Court is going to try to totally upend the ability of our national government to safeguard the nation's health and safety amidst a global pandemic sweeping the country."

  • Supreme Court’s conservatives on the verge of ending right to abortion

    December 16, 2021

    The Supreme Court is ending the year starkly split on abortion, with the five conservatives showing all signs they will overturn Roe vs. Wade and let state lawmakers decide whether women may legally end a pregnancy. ... Roberts is no liberal and has repeatedly voted against abortion rights in the past. However, as chief justice, he has often tried to steer the court on a middle path to avoid sharp and divisive rulings. But he is no longer in control. "Now the five on his right can just abandon him," said Harvard Law School Professor Richard Lazarus, an environmental law expert who has been a friend of Roberts for more than 40 years. Instead, he said, control rests in the hands of Justices Clarence Thomas and Samuel A. Alito Jr., conservative veterans who have long been determined to reverse the abortion rulings. "We may be seeing the early signs of a disintegration within the court itself," Lazarus added.

  • With Roe at Risk, Justices Explore a New Way to Question Precedents

    December 13, 2021

    Roe v. Wade has had a rough two weeks at the Supreme Court. On Dec. 1, at arguments over its fate in a case from Mississippi, the five most conservative justices showed no interest in doing anything short of overruling it. ... If the court overrules Roe, an increasingly real possibility, it will have to explain why it is departing from the principle of stare decisis, which is legal Latin for “to stand by things decided.” ... Shifting the analysis from the words of the opinion to the advocacy that gave rise to it is a recent development and yet another way to undermine precedents. Richard J. Lazarus, a law professor at Harvard, explored this mode of argument in a recent article in The Supreme Court Review called “Advocacy History in the Supreme Court.” The article makes the sensible point that a full understanding of a Supreme Court decision requires consideration of how the parties had framed the case.

  • Future of abortion rights depends on a Supreme Court for which compromise seems elusive

    December 3, 2021

    The immediate future of abortion rights in the United States might depend on whether Chief Justice John G. Roberts Jr.’s attempt at compromise Wednesday was dead on arrival or just an opening bid. ... Wednesday’s argument “created the remarkable impression of a court at risk of disintegration,” said Richard Lazarus, a Harvard Law School professor who studies the court. “The now outsize conservative majority knew they could safely cast a deaf ear to the concerns of other justices, including even the chief justice. And the resulting frustration of the three more liberal justices was palpable.”

  • Adira Levine

    Harvard Law School student wins ABA administrative law writing competition

    November 23, 2021

    Adira Levine ’22, a third-year Harvard Law School student, was recently recognized by the American Bar Association’s Section of Administrative Law and Regulatory Practice for her essay on the intersection of the Freedom of Information Act (FOIA) and environmental law.

  • Supreme Court’s Unusual Decision to Hear a Coal Case Could Deal President Biden’s Climate Plans Another Setback

    November 8, 2021

    Just as it became clear that President Joe Biden could not get Congress to agree to a Clean Electricity Payment Program, the Supreme Court announced it would hear a case that could prove just as big a setback in his plans for climate action. The case brought by the coal industry and a coalition of red states resurrects an argument they have been making for years: that the U.S. Environmental Protection Agency can’t impose major changes on the nation’s energy system without explicit authority from Congress. ...“This is a one-two punch,” said Richard Lazarus, a professor at Harvard University who has argued numerous environmental law cases before the Supreme Court. “The timing was not good—to have the budgetary stuff not happen in Congress, and then for the court to basically say, ‘By the way, we may be willing now to slam the door on anything else you’re thinking about doing.'”

  • Supreme Court to Hear Case on E.P.A.’s Power to Limit Carbon Emissions

    November 2, 2021

    The Supreme Court agreed on Friday to hear appeals from Republican-led states and coal companies asking it to limit the Environmental Protection Agency’s power to regulate carbon emissions under the Clean Air Act. “This is the equivalent of an earthquake around the country for those who care deeply about the climate issue,” said Richard J. Lazarus, a law professor at Harvard. The court’s decision to take the case came days before President Biden is to attend a global climate summit in Scotland where he seeks to reassure other nations that the United States will continue to pursue aggressive policies to combat global warming.

  • A Century-Long ‘Reign of Error’ for a Supreme Court Typo

    October 18, 2021

    “When we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences,” Justice Samuel A. Alito Jr. said last month. “So we have to be careful about every single thing that we say.” A fascinating new study of the extraordinary impact of a tiny typographical error in a Supreme Court opinion almost a century ago illustrates the point. The mistake appeared in a slip opinion issued in 1928, soon after the court announced a decision in a zoning dispute. It contained what seemed like a sweeping statement about the constitutional stature of property rights: “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” But the author of the opinion, Justice Pierce Butler, had not meant to write “property.” He meant to say “properly.” ... These days, the Supreme Court is much better about publicizing its errors. That is a consequence of changes instituted by the court in response to a 2014 article by Richard J. Lazarus, a law professor at Harvard, who disclosed that the justices had long been revising their opinions without public notice, sometimes amending or withdrawing legal conclusions.

  • Supreme Court of the United States at night

    Pay no attention to the justices behind the curtain

    September 23, 2021

    Charles Fried, Richard Lazarus ’79, Tejinder Singh ’08, and Carol Steiker ’86 discuss the Supreme Court’s increasingly important emergency powers known as its “shadow docket.”

  • A group of ten students pose outside at granite bench on the Harvard Law School campus.

    Tips for law school success

    August 31, 2021

    Harvard Law School faculty and staff share what they wished they’d known about doing well and staying well in law school — useful whether you’re a first-year student just beginning your journey, an LL.M., S.J.D., or a 3L preparing to make your mark on the world.

  • Man walking away from a podium by an American Flag and a sign that says Department of Justice Washington

    Off the bench and into the breach

    June 30, 2021

    Merrick Garland ’77 made the unusual choice to leave a lifetime appointment on the nation’s second most influential court to instead lead a federal agency with roughly 115,000 employees. Unusual, but not surprising, say those who know him well.

  • Republican AGs Press Supreme Court on EPA Climate Authority

    April 30, 2021

    West Virginia and other states are taking a critical climate question to the U.S. Supreme Court, asking the justices to embrace a narrow interpretation of federal authority to regulate planet-warming emissions...The Supreme Court has previously expressed interest in the EPA’s regulatory authority over greenhouse gases, taking the unprecedented step of freezing the Obama-era Clean Power Plan before it was litigated in lower courts. But the states’ new petition faces a “vanishingly small chance” of being granted, Vermont Law School professor Patrick Parenteau said, as the Biden administration has already said it doesn’t plan to revive the Trump or Obama rules. “Better to wait to see what EPA comes up with,” he said. Harvard Law professor Richard Lazarus agreed, but noted that the case could present a test for the conservative Supreme Court. “The petition provides an opportunity to measure to what extent the new six-Justice conservative majority on the Supreme Court is aggressively looking for opportunities to cut back on EPA’s authority even in the absence of the normal indicia necessary for Supreme Court review,” he said in an email.

  • The fight for environmental justice

    April 27, 2021

    North Carolina is one of the nation’s largest producers of pork. The industry is primarily centered in agricultural portions of Eastern North Carolina, home to a number of Black and Indigenous communities, and a surging Latinx population...The coexistence of air pollutants and communities of color isn’t an anomaly, says Hannah Perls, J.D. ’20, but is representative of the environmental injustices that many communities of color across America live with... “There’s that great saying – the system isn’t broken; it’s working exactly as it was designed,” she says. “Often environmental justice communities live at the intersection of several inequitable and interlocking systems and ideologies: racism, capitalism, and white supremacy, among others.” ... “Environmental justice means that you need involvement and participation of peoples of all colors and all income levels in the development, implementation, and enforcement of our protection laws,” says Richard Lazarus, the Howard J. and Katherine W. Aibel Professor of Law. “This is not supposed to be top-down.” Lazarus, who leads the EELP alongside Jody Freeman, the Archibald Cox Professor of Law, has spent much of the past 30 years of his legal career studying and trying to solve the environmental disparities faced by communities of color, and most recently worked on the Biden administration’s transition team and helped elevate the issue to be a top priority for the president.

  • A demonstrator holding a sign the reads, System Change, Not Climate Change, with a drawing of the Earth.

    A focus on the environment

    April 22, 2021

    In recognition of Earth Day, we highlight some recent work and perspectives of Harvard Law's students and scholars committed to environmental change.

  • Biden speaking at a podium

    Freeman, Lazarus discuss Biden administration’s reversal of Trump’s environmental legacy

    April 22, 2021

    At a recent event, Harvard Law School Jody Freeman and Richard Lazarus gave an account of the environmental policy swing underway in the Biden administration.

  • Collage of people working from home

    Going remote

    March 3, 2021

    Ten Harvard Law School faculty share a behind-the-scenes look at their Zoom studios and the innovative approaches they employed to connect with students.

  • Kids Climate Litigants Push High Court Fight Some Call Reckless

    February 11, 2021

    The young plaintiffs behind an ambitious climate lawsuit are taking their case to the U.S. Supreme Court, despite warnings from environmental lawyers that the attempt could backfire. Lawyers for the 21 children and young adults in Juliana v. United States quickly announced plans Wednesday to file a Supreme Court petition after the U.S. Court of Appeals for the Ninth Circuit refused to revive their claims that the federal government has violated their constitutional right to a stable climate system. Julia Olson, who represents the plaintiffs, said she and her clients were unmoved by detractors who worry a Supreme Court fight would undermine broader environmental litigation...Outside lawyers, many of whom are sympathetic to the plaintiffs’ novel claims, say taking the issue to the high court could spell disaster for environmental interests if the justices agree to review the case. The Ninth Circuit’s rehearing denial is “no doubt enormously disappointing” to the plaintiffs after their more than five-year effort to make the government take action “urgently needed to avoid the truly catastrophic consequences of climate change that the entire planet now faces,” Harvard Law professor Richard Lazarus said. “For making clear the depth of the government’s past decades-long lapses in the face of industry malfeasance, the plaintiffs and their lawyers deserve the nation’s thanks,” he said. But Lazarus cautioned that seeking Supreme Court review would be “a serious strategic mistake” for those who care about climate issues. “The result would far more likely be the establishment of binding legal precedent by the Supreme Court that sets back critically important efforts to address the climate issue rather than a Supreme Court ruling that promotes those efforts,” he said.

  • Wendy Jacobs

    Wendy Jacobs: 1956-2021

    February 10, 2021

    Wendy Jacobs, one of the nation’s most highly celebrated environmental law experts, was the founding director of the first-ever environmental law and policy clinic at Harvard Law School.

  • Kavanaugh Fixes Error in Election Opinion After Vermont Complaint

    October 30, 2020

    Justice Brett M. Kavanaugh on Wednesday corrected an error in an opinion issued as part of a Supreme Court ruling that barred Wisconsin from counting mail-in ballots that arrive after Election Day. Though not unheard-of, such revisions are rare, experts said, adding that Justice Kavanaugh’s change highlighted the court’s fast pace in handling recent challenges to voting rules. In the opinion, which was issued on Monday and alarmed Democrats worried about mail ballots being counted, Justice Kavanaugh wrote that while some states had changed their rules around voting in response to the pandemic, others had not. “States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots,” he wrote in his original concurring opinion, which was attached to the 5-to-3 ruling against the deadline extension in Wisconsin. The decision, issued just over a week before the presidential election, immediately drew intense scrutiny, and Justice Kavanaugh’s opinion prompted a complaint from Vermont’s secretary of state, Jim Condos. He pointed out that the state had, in fact, changed its rules to accommodate voters worried about showing up to polling stations during the pandemic...The Supreme Court began noting corrections and changes in opinions following a 2014 study that showed how, for years and without public notice, it had been altering its decisions long after they were issued, said Richard Lazarus, a law professor at Harvard University and the study’s author. During the 2019-20 session, the court noted it had changed errors or typos in written decisions about half a dozen times, he said. The court typically issues several dozen decisions each term. In this case, Professor Lazarus said, Justice Kavanaugh’s error was troubling because it revealed the rapid-fire pace with which the court, days before a presidential election, is making decisions that have enormous implications for the country. “The mistake he made is not of an earth-shattering, catastrophic nature but it does underscore the risk of writing quickly, not writing more deliberately and not taking time,” he said...When the justices do not have time to send opinions back and forth to one another and deliberate together, “they’re more likely to make mistakes,” Professor Lazarus said.

  • Ruth Bader Ginsburg left behind a powerful environmental legacy

    October 13, 2020

    Supreme Court Justice and liberal icon Ruth Bader Ginsburg, who recently passed away at the age of 87, was best known for championing women’s rights. But she also leaves behind a remarkable environmental legacy. Harvard Law Professor Richard Lazarus, author of “The Rule of Five: Making Climate History at the Supreme Court,” believes the “classic example” of Ginsburg’s contribution to environmental jurisprudence was the 2007 case Massachusetts v. EPA, which is widely considered the most important environmental case ever decided by the US Supreme Court. This was the case in which the court established that EPA had authority to regulate greenhouse gases under the Clean Air Act, an idea that EPA itself had rejected. No less importantly, according to Lazarus, the case established that a plaintiff who alleged climate injury had the right to bring a case in federal court — “a hugely significant decision in its own right,” according to Lazarus. In several other cases, Ginsburg not only cast the decisive note, she wrote the opinion for the court, which Lazarus says was even more notable. Of the cases for which Ginsburg wrote the opinion for the majority, he adds, the most significant was Friends of the Earth v. Laidlaw. In this case, a group of citizens brought a lawsuit under the Clean Water Act alleging hundreds of violations of mercury emissions rules by the Laidlaw industrial facility in the area around South Carolina's North Tyger River. The Court of Appeals had held that the environmentalists lacked the requisite injury to bring the lawsuit, but the Supreme Court reversed the previous ruling. “Justice Ginsburg wrote a tour de force in that opinion,” Lazarus says. Her opinion not only established that these particular environmental plaintiffs had standing to bring their particular Clean Water Act suit.

  • New Supreme Court Term Could End Roberts’s Dominant Role

    October 5, 2020

    A short-handed Supreme Court — driven from its courtroom by the pandemic, grieving over the loss of a colleague and awaiting the outcome of a divisive confirmation battle — will return to the virtual bench on Monday to start a term that will present Chief Justice John G. Roberts Jr. with a daunting test. “The chief’s leadership of the court, which just a few weeks ago appeared to be at its zenith, is now in peril,” said Richard J. Lazarus, a law professor at Harvard who has taught courses on the Supreme Court with Chief Justice Roberts. “An addition of yet another very conservative justice could quickly eliminate the chief’s ability to steer the court toward moderation.” The court will again hear arguments by telephone, starting with a timely case on the role of partisanship in judging, a subject that will also figure in Senate hearings on the Supreme Court nomination of Judge Amy Coney Barrett, which are scheduled to start a week from Monday. President Trump and Senate Republicans have been working hard to speed her path to the seat left vacant by the death last month of Justice Ruth Bader Ginsburg...Professor Lazarus said the court’s last term had reassured the public that “there was some truth to the chief justice’s admonition that the justices, while on balance very conservative, were not political partisans.” “All that hard-earned good will may soon be in tatters because of how President Trump has responded to Justice Ginsburg’s passing,” he added. “No matter how hard the chief and his colleagues try to stay above the political fray, it is a battle they cannot win when the president treats his nominees to the court as political loyalists.”

  • The Supreme Court’s coming rightward shift on climate

    September 30, 2020

    Amy Coney Barrett's likely ascension to the Supreme Court would affect climate policy beyond shoving the court rightward in the abstract. Why it matters: If Joe Biden wins the presidential election, his regulations and potential new climate laws would face litigation that could reach the high court. If Trump wins, ongoing cases over his dismantling of Obama-era policies could also reach SCOTUS. Whoever wins, a court with a 6-3 conservative majority will issue rulings that undoubtedly have ripple effects...Several analysts point to Barrett's writings that suggest support for "non-delegation doctrine," a legal theory that massively restricts how much power Congress can hand off to executive agencies. A related area: She could take a narrow view of the "Chevron deference," or the idea agencies deserve running room when statutes are vague or silent on a topic. Both matter when it comes to using the Clean Air Act to tackle global warming, because the 50-year-old law does not directly address the topic...Axios also asked Harvard Law School's Richard Lazarus about whether the more conservative court might upend Massachusetts v. EPA: "While the Court sometimes overrules it constitutional rulings, it almost never overrules its rulings on the meaning of federal statutes. I don’t think they would do it here."

  • Bloomberg Markets: The Close

    September 29, 2020

    Romaine Bostick & Taylor Riggs bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street and tackle the SCOTUS impact on the Affordable Care Act, the delayed TikTok ban and oil's lackluster demand Guests Today: Meb Farber of Cambria Investment Management, Jonathan Gruber of MIT, David Conrod of FocusPoint, Jose Antonio Vargas of Define American, Chris Davis of Davis Advisors, Jason Katz of UBS, Richard Lazarus of Harvard Law School.

  • Trump’s Supreme Court move deepens fears of an authoritarian power play

    September 28, 2020

    President Trump announced his nomination over the weekend of conservative Judge Amy Coney Barrett as a replacement for Supreme Court Justice Ruth Bader Ginsburg, who died Sept. 18. If Barrett is confirmed by the Republican majority in the Senate, before or after the November election, Trump will have managed to seat three right-wing justices on the country’s highest court and cement an ironclad 6-3 conservative hegemony for a generation to come. That may thrill Trump’s base and the conservative legal movement that has seen the Trump administration fill numerous federal judicial positions with its ideological allies. But Trump’s impact on the Supreme Court has also stirred growing alarm and anger. The president’s critics and opponents are furious over the naked hypocrisy of many of the same Republican senators who blocked President Barack Obama’s nominee in 2016 on grounds that such a weighty decision should not proceed in the middle of an election year. Moreover, Trump’s critics see his latest move as part of a broader autocratic power play. For months, the president has openly called into question the legitimacy of the upcoming election, ahead of which polls show him trailing by a significant margin nationally. A recent article by the Atlantic’s Barton Gellman outlined the all-too-real, looming set of constitutional crises that could follow, should Trump attempt to remain office or question the credibility of the vote. Key to such an attempt would be both Trump’s considerable executive powers and the conservative majority in the Supreme Court, which Trump has already admitted may be crucial to maintaining his place in the White House. It is difficult for the public to see the court as politically neutral “when a primary reason being given in favor of an expedited Senate confirmation hearing is … so the new justice can be there in time to vote in a way that will ensure the reelection of the president who just nominated them,” Richard J. Lazarus, a Harvard University law professor, told The Washington Post’s Robert Barnes.

  • RBG’s Everlasting Impact on Environmental Jurisprudence

    September 22, 2020

    An article by Richard LazarusThe center of gravity of Justice Ruth Bader Ginsburg’s fame is justifiably focused on her pioneering work both as a young attorney and later as a justice for gender equality. Ginsburg’s own career embodied the women’s liberation movement and she clearly inspired generations of women as well as men to follow her example. What is less appreciated is the significant role that Justice Ginsburg played in environmental law on the high court, and how that record, in turn, reveals what made her such a great justice. Ginsburg came to the court in 1993 with no particular reputation on environmental issues. She had never practiced environmental law as an attorney and while serving as a judge on the U.S. Court of Appeals for the D.C. Circuit, she displayed no particular affinity toward environmental protection. If anything, then-Judge Ginsburg enjoyed a straight-shooter, pro-business reputation. Business community support of her Supreme Court nomination partly explains why Ginsburg was so easily confirmed by the Senate, 96-3, notwithstanding her obvious liberal views on otherwise potentially controversial social issues such as abortion rights. Once on the court, however, Ginsburg quickly became an important vote in environmental cases. What is most telling about her environmental law record, however, is its underscoring of both her integrity and her extraordinary skills as a jurist. Most simply put, although Justice Ginsburg’s fame is understandably rooted in her championing gender equality, the justice’s greatest contributions were rooted not in her ideology but in her skills as one of the most talented lawyers ever to serve on the court. Environmental advocates appearing before Ginsburg knew the justice was never a vote they could assume. Her vote always had to be earned. And the only way to earn that vote would be the force and persuasiveness of their legal arguments. The justice’s vote would not be decided by whatever sympathy she might privately harbor for the environmental protection policies they were promoting. Ginsburg was a progressive liberal, to be sure, but she was first and foremost an outstanding lawyer who applied her extraordinarily analytic skills with rigor and precision to the legal issues before the court.

  • Author Series Panelists Set Bar High in Supreme Court Talk

    August 12, 2020

    How do you tell the story of an institution as enigmatic as the United States Supreme Court? On Sunday evening, Ruth Marcus, Adam Cohen and Richard Lazarus, three Harvard Law School graduates and authors of recent nonfiction works about the high court, set out to answer this question. Moderated by reporter Dahlia Lithwick, the panel of authors talked all things Supreme Court, from its structure to its most recent rulings, in a debate-style panel as part of the latest event in the 2020 Martha’s Vineyard Author Series. Opening the event with a bang, Ms. Lithwick posed the panelists with a polarizing question that set the tone for the rest of the discussion—whether they see the court as a political entity or purely a legal one...Drawing on his time representing environmental groups and governments in 40 Supreme Court cases, Mr. Lazarus said that to him, the court is a legal institution, stationed above politics. “When you have all the top political commentators, left and right, and both of them want to propel just the story [of a political court] it’s very hard for a second story to ever have any value to people,” said Mr. Lazarus...Mr. Lazarus on the other hand, stressed the importance that good lawyers with strong arguments play in the court’s rulings. But Ms. Marcus pushed back, citing the limits of lawyering under the current President. Keeping up a brisk pace, the scholars touched on a wide range of topics posed by viewers, like the impact of the Presidency on the court and whether or not the court should adopt structural reforms, like adding additional justices or instating term limits.

  • Illustration of gavel moving toward polluted air

    Making History in Environmental Law

    August 12, 2020

    In his new book “The Rule of Five,” Richard Lazarus goes behind the scenes of the biggest environmental law case in Supreme Court history.

  • Group shot in front of the U.S. Supreme Court

    Double Take

    July 23, 2020

    “Carly” Anderson ’12 wrote on Dec. 4 to report that Mitch Reich ’12 had argued Rodriguez v. FDIC before the Supreme Court just the day before. Among those listening to the argument in the courtroom were Anderson and four other HLS classmates—Stephanie Simon, Matthew Greenfield, Stephen Pezzi and Noah Weiss—who, along with Reich, had all been members of the 2011 winning Ames Moot Court Competition team.

  • How Biden could use air law to vanquish Trump climate legacy

    July 21, 2020

    If Democrat Joe Biden defeats President Trump this November, his EPA will have a blank slate for writing climate rules. Because the Trump administration spent 3 ½ years demolishing its predecessor's Climate Action Plan, Biden's team would have an opening to update rules for carbon, methane and hydrofluorocarbons that would exceed their Obama-era counterparts or be more tailored to the political, judicial and economic realities of the 2020s. To be sure, a departing Trump EPA would leave finalized rules for power plant carbon, vehicle fuel economy, and oil and gas development, among other things, but most of those regulations haven't faced court reviews, allowing an incoming administration to ask that they be returned to the agency. That request — if granted — would clear the path for a Biden EPA to write new rules to go with the former vice president's promise of rejoining the Paris Agreement and the global effort to contain global warming...Meanwhile, the Trump administration has succeeded in moving the courts to the right, up to and including the Supreme Court. Justice Anthony Kennedy, the swing vote who retired from the court two years ago, usually sided with the court's liberal members on environmental cases like Massachusetts v. EPA, which established that EPA has the authority and obligation to address climate change under the Clean Air Act. The two justices Trump has nominated don't have that reputation...Richard Lazarus, a Harvard Law School professor and author of "The Rule of Five," which chronicles Massachusetts vs. EPA, said the agency under Biden would be aggressive. But he agreed that a conservative Supreme Court would be a barrier. "They will try to do more on power plants under a less ambitious legal theory," he predicted, adding that that would probably mean on-site emissions reductions.

  • Latest Term Shows John Roberts in Command of Shifting Coalitions

    July 13, 2020

    The Supreme Court closed a pivotal annual term last week bearing the unmistakable imprint of Chief Justice John Roberts, who embraced the role of institutionalist as he sought to keep the court above nation’s intense partisanship during a time of national upheaval. Over the course of 55 cases decided this year—involving such politically sensitive issues as access to President Trump’s financial documents, gay rights, workplace discrimination and religious exemptions from providing contraceptive coverage—the chief justice was in the majority in all but two decisions...Taken together, the court’s output reflected the overarching message Chief Justice Roberts has sought to deliver since taking the helm in 2005: The judiciary stands apart from the partisanship that consumes its coequal branches of government, Congress and the presidency. “He believes very strongly that people should not look at the court and see Republicans and Democrats, that they not see judges as mere partisans,” said Harvard law professor Richard Lazarus, a longtime friend of the chief justice. “It’s an uphill battle, both against the outside forces, and sometimes within the court itself.” Mr. Lazarus says that goal plays a part in the votes the chief justice casts. In 2016, for instance, he dissented from a 5-4 decision invalidating a Texas law imposing burdensome requirements on abortion providers. But last month, he cast the deciding vote to strike down a similar Louisiana measure, writing that he felt bound to follow the precedent despite his disagreement...When possible, Chief Justice Roberts “doesn’t want 5-to-4. He wants to see 6-to-3 or 7-to-2,” said Mr. Lazarus, whose own recent book on the court is titled “The Rule of Five.”

  • John Roberts Was Already Chief Justice. But Now It’s His Court.

    July 1, 2020

    In a series of stunning decisions over the past two weeks, Chief Justice John G. Roberts Jr. has voted to expand L.G.B.T.Q. rights, protect the young immigrants known as Dreamers and strike down a Louisiana abortion law. In all three decisions, he voted with the court’s four-member liberal wing. On Tuesday, he joined his usual conservative allies in a 5-to-4 ruling that bolstered religious schools. The decisions may be hard to reconcile as a matter of brute politics. But they underscored the larger truth about Chief Justice Roberts: 15 years into his tenure, he now wields a level of influence that has sent experts hunting for historical comparisons...Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision vindicated Chief Justice Roberts’s statements. “The chief is sending a broader message to both parties, and this time in this case it is the Republicans who take the hit,” Professor Lazarus said. “But the message would be the same if it were the Democrats and their favored position had lost.” The message was this, Professor Lazarus said: “You cannot expect us to behave like partisan legislators.” The abortion case concerned a Louisiana law that was essentially identical to one from Texas that the court had struck down just four years ago, before Mr. Trump appointed two new justices. In dissent in 2016, Chief Justice Roberts had voted to uphold the Texas law. Professor Lazarus said he suspected the chief justice was offended by the idea that a change in the composition of the court should warrant a different outcome in what was, at bottom, the identical case.

  • With abortion ruling, Roberts reasserts his role and Supreme Court’s independence

    June 30, 2020

    Every Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows. In a remarkable stretch of decisions over the past two weeks, Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought here as children...Roberts’s admirers speculate he was turned off by the attempt to have the court’s 2016 decision overturned because the court’s membership had changed with Trump’s two appointments. Too soon, said Richard Lazarus, a Harvard law professor who has known Roberts since law school days and who has taught summer courses with the chief justice. “The chief’s clear message is that is not how justices do their work,” Lazarus said in an email. “It is a shot across the bow at presidential candidates who campaign with lists of nominees based on the assumption that, if confirmed, they will of course necessarily vote based on the preferences of the majority who supported that candidate.”