Richard Lazarus

With today marking the first day of arguments for the Supreme Court, most would think that the justices’ work from the previous term is over. But in fact, the justices spend years reworking their opinions after they are initially released, purging them of grammatical, spelling, stylistic, and even factual errors. The court’s decisions take effect immediately, but the opinions—the written rationales behind the decisions— don’t become official until they are published in United States Reports, the official publication of Supreme Court rulings...The court’s “commitment to getting things absolutely right is commendable,” said Richard Lazarus, a Harvard Law School professor. But the practice of quietly tinkering with opinions after the fact, and then being nontransparent about what changes were made, is “fairly indefensible,” said Lazarus, the first legal scholar to document the process.

After a pre-screening of the upcoming film “Deepwater Horizon” in Davis Square, Harvard faculty and other law experts offered insight into the the 2010 oil spill of the same namesake in the Gulf of Mexico and the extensive legal aftermath. The film was screened in Somerville Theater on Wednesday for those with a Harvard ID and a guest. Panelists included Law School professor Richard J. Lazarus, who chaired President Barack Obama’s Commission on the Deepwater Horizon Gulf Oil Spill...“This was an unbelievable disaster that shouldn’t have happened,” Lazarus said of the spill. “What happened is that [BP] got complacent. They hadn’t had a disaster in a long time.”

Following years of debate over U.S. EPA's Clean Power Plan, the U.S. Court of Appeals for the District of Columbia Circuit heard arguments yesterday in the lawsuit challenging the rule. During today's OnPoint, Richard Lazarus and Jody Freeman, professors at Harvard Law School, discuss the reactions coming from the 10-judge panel on the key issues and arguments in the case. They also explain why they believe the court's final ruling will more than likely favor EPA.

This September is a big month for the coal industry. Early in the month, the US Environmental Protection Agency released its final version of a modified Cross-State Air Pollution Rule that seeks to cut emissions from power plants tied to smog. And, at the end of the month, a federal circuit court will begin hearing arguments over the Clean Power Plan that aims to cut carbon emissions...Harvard Law Professors Jody Freeman and Richard Lazarus explain that EPA’s rule gives states several alternative options to comply, such as replacing their coal-fired generation with plants that run on cleaner natural gas, or with green energies. States with a lot of coal, for instance, have less stringent requirements. With that, Freeman and Lazarus point out that coal plants in this country are on average 42-years-old and pollute a lot more than newer plants. Still, coal is expected to supply 30 percent of the nation’s energy mix by 2030, which negates the argument that the plan is nothing more than a “power grab.”

Supreme Court opinions are not set in stone. Justices keep editing them after they are issued, correcting factual errors and even misstatements of law. For decades, those changes were made largely out of sight. But in October, on the first day of the term, the court announced that it would start disclosing after-the-fact changes to its decisions...A couple of years ago, Richard J. Lazarus, a law professor at Harvard, revealed that the court had routinely been revising its decisions, altering them without public notice weeks, months and sometimes years after they were first issued. Professor Lazarus urged the justices to disclose the changes. “The court can both make mistakes and admit mistakes without placing its institutional integrity at risk,” he wrote in The Harvard Law Review. To its credit, the court — never one for rapid change — listened.

A Supreme Court term that started off as lackluster for environmental law enthusiasts has turned out to be one for the history books. But unlike some other years when a series of sweeping rulings set new precedent in environmental law, the events that triggered the most shock waves and headlines this term weren't opinions. Rather, they were the death of one of the high court's most dominant voices on environmental and administrative law, and an unprecedented move to block a landmark climate regulation while legal challenges were still pending in a lower court..."The fact is ... there were two stunning things that happened within Tuesday to Saturday," said environmental attorney and Harvard Law School professor Richard Lazarus. "Each one was a huge surprise." Speaking to an audience of environmental lawyers the week before those events, Lazarus noted presciently, "The court tends to start out looking like it's going to be sleepy, and by the end of the term they've got a lot of big hot-button issues." Overall, Lazarus said in an interview, the term has been "unsettling because of the uncertainty it means about future litigation in the court."

The D.C. Circuit announced that it’s delaying arguments on the Clean Power Plan by three months, until Sept. 27. For those keeping track at home, that’s after the date the panel had pledged to rule on the case — and EPA’s deadline for states to submit their preliminary plans. Yes, this throws a wrench in the works. But, it’s not all bad news for the EPA and environmentalists. Instead of a three-judge panel hearing the case, it will be heard en banc by a full slate of nine judges. Of those nine judges, five were appointed by Democrats...“The court has anticipated, obviously, the significance of whatever the panel would say and the related likelihood that it would end up en banc. They’ve basically truncated that process,” Richard Lazarus, a Harvard Law School professor representing former EPA administrators William D. Ruckelshaus and William K. Reilly in defense of the Clean Power Plan, told Bloomberg BNA.

Nearly 200 Democrats in Congress – including most from New England – are supporting the Environmental Protection Administration as it faces a legal challenge to its effort to regulate carbon emissions from coal-burning power plants. “The law is clear: The Clean Air Act gives EPA the authority to regulate air pollution and that is what the agency is doing with the Clean Power Plan rule,” Sen. Edward Markey, D-Mass., said during a conference call Friday with reporters to announce the filing of an “amicus brief” in support of the rule...A similar brief was filed Thursday by Harvard Law Professors Jody Freeman and Richard Lazarus on behalf of two former EPA administrators who had been appointed by Republican presidents Richard Nixon, Ronald Reagan and George H.W. Bush. Former EPA Administrators William D. Ruckelshaus and William K. Reilly are supporting the Clean Power Plan as a “pragmatic, flexible, and cost-effective pollution control program” that respects the authority of states. They argue that the rule “falls well within the bounds” of the agency’s authority to reasonably interpret broadly worded statutory language to address unforeseen problems without the need for congressional amendment of current law.

Two former Republican-appointed U.S. EPA administrators are urging federal judges to uphold an Obama administration climate rule that's come under siege in court. William Ruckelshaus and William Reilly are submitting a brief to the U.S. Court of Appeals for the District of Columbia Circuit today as "friends of the court" supporting EPA's Clean Power Plan, which aims to cut power plants' greenhouse gas emissions...The two former EPA administrators are represented in the case by Harvard Law School professor Richard Lazarus. "The Clean Power Plan represents the very kind of pollution control program" that the two former agency bosses "endorsed during their service at EPA," the brief adds. "The Plan is a pragmatic, flexible, and cost-effective pollution control program, which properly respects State sovereignty by affording States substantial authority and latitude to decide whether and how best to administer its provisions."

A week after Harvard Law School’s seal change became final, a group of faculty members are publicly speaking out in support of Law School Dean Martha L. Minow, charging that student activists at the school have not given her due credit for her efforts to address racial issues on campus. Seven Law School faculty members—Glenn Cohen, Randall L. Kennedy, Richard J. Lazarus, Todd D. Rakoff, Carol S. Steiker, Kristen A. Stilt, and David B. Wilkins—published an open letter in the Harvard Law Record Monday defending Minow. They wrote, “Our goal here is… to express our support and deep appreciation for Dean Minow and all that she has done during this difficult and important process, and to advance the cause of justice throughout her long and distinguished career.”

President Obama has put a face on the epic election-year Supreme Court battle: Merrick Garland...."Garland has earned a well-deserved reputation as a jurist who is a complete straight-shooter, who comes to his cases, including environmental law cases, without a preconception of preferred outcome," said Harvard Law School professor Richard Lazarus. "He has proven repeatedly that he is open to giving all claims a meaningful hearing," Lazarus said. "Given that the justice he would be replacing, Antonin Scalia, was known for his heightened skepticism of environmental protection laws and their citizen suit enforcement, a Justice Garland would clearly make a difference for environmental law cases before the Supreme Court."

President Obama’s nominee to the Supreme Court, Merrick Garland, is expected to meet with several U.S. senators on Capitol Hill Thursday, where Republicans have promised to block any confirmation hearing. Garland, who is currently chief justice of the Circuit Court of Appeals in the District of Columbia, has maintained a strong bond with Harvard — where he attended both undergrad and law school. If confirmed, Merrick Garland would be the 20th Harvard Law School graduate on the nation’s highest court. That number is twice as many as Yale, which has had 10 graduates on the court. Professor Richard Lazarus was in his office at Harvard Law School watching on his computer as the president of the United States nominated his friend, Garland, for a seat on the Supreme Court...“He was also a leader when he was here as a student,” said Lazarus...Martha Minow, dean of Harvard Law, said Garland “makes even hard conversations better.” “He is someone who cuts to the heart of the matter, but listens very hard to all points of view,” she continued. “And in addition, he has a great sense of humor.”

So now what? The path ahead for President Obama’s Clean Power Plan went from arduous but somewhat clear to murky with the death of Supreme Court Justice Antonin Scalia on Feb. 13. The whirlwind week for the plan, a key commitment by the United States to reduce climate-changing carbon-dioxide emissions, started with the Supreme Court voting 5-4 to freeze the plan in place, halting implementation while legal issues are decided by the U.S. Court of Appeals for the D.C. Circuit and, likely, by the Supreme Court itself. Scalia’s death and the battle over selecting his successor that quickly developed between Obama and Senate Republican leaders have raised the prospect of an extended period with a Supreme Court split 4-4 between conservative and liberal justices ― in other words “a mess” for the plan, according to environmental law expert Richard Lazarus, the Howard and Katherine Aibel Professor of Law at Harvard Law School. Lazarus, who is serving as counsel in the case for two “friends of the court,” former Republican EPA administrators William Ruckelshaus and William Reilly, spoke with the Gazette about both the plan’s impending lower court hearing and its path ahead should it undergo Supreme Court review.

...Graduates of Harvard Law School and Yale Law School have dominated the court for the past two decades, and each sitting justice attended one of those schools...Harvard Law professor Charles Fried said that the preoccupation with where the justices attended law school is unhelpful, particularly because Harvard students come from a wide range of ethnicities, educational backgrounds and income levels—each of which are more important factors than the name on a judge’s law degree. “What’s more important [than their law alma matter] is their ability, their knowledge, how much they’ve learned and how good they are,” Fried said...“I certainly won’t say that having a lot of Harvard justices is a bad thing,” said Harvard law professor Richard Lazarus, who attributes the school’s long roster of high court judges to its large size, elite reputation, and commitment to admitting students with from a broad array of backgrounds and states who display leadership qualities.