Richard Lazarus

Two Republicans who headed the Environmental Protection Agency (EPA) are backing the Obama administration’s climate change rule for power plants as it faces a federal court challenge. William Ruckelshaus, who was the first EPA administrator under President Richard Nixon and later served in the same position under President Ronald Reagan; and William Reilly, who served under President George H.W. Bush, want to be able to file amicus briefs in the case. The two men support the climate rule, saying in October that “the rule is needed, and the courts we hope will recognize that it is on the right side of history.”...Ruckelshaus and Reilly are being represented by Jody Freeman and Richard Lazarus, two Harvard Law School professors who have written and fought in support of the climate rule.

Harvard Law School Professor Richard Lazarus joined via Skype to talk about Chief Justice John Robert’s approach to opinion writing assignments and other administrative tasks.

Chief Justice John G. Roberts Jr. is a stickler for evenly distributing the workload of the Supreme Court, but he plays favorites among his eight colleagues when assigning the court’s most important decisions. Not surprisingly, Roberts calls his own number more than anyone else’s and assigns the second-highest number to Justice Anthony M. Kennedy, the pivotal justice on the ideologically divided court, according to a new study by Harvard law professor Richard J. Laz­arus, published in the Harvard Law Review. On the other hand, Roberts has never assigned Justice Sonia Sotomayor the court’s opinion in a major case in her six terms on the court, Lazarus found, an omission that he wrote “could be a bit portentous.” In looking broadly at the chief justice’s 10 years on the job, Laz­arus found that Roberts hesitates in assigning big decisions to the court’s most conservative and liberal members — Antonin Scalia and Clarence Thomas on the right, and Sotomayor and Ruth Bader Ginsburg on the left.

When the chief justice is in the majority, he gets to decide who will write the Supreme Court’s opinion. This is, Justice Felix Frankfurter once wrote, “perhaps the most delicate judgment demanded of the chief justice.” Chief Justice John G. Roberts Jr. has approached the task with characteristic rigor. In one sense, a new study concluded, he is scrupulously fair: Every justice gets very close to the same number of majority opinions. In another sense, he plays favorites, doling out major assignments and unappealing ones with keen attention to strategy. Chief Justice Roberts finished his 10th term in June. In those years, he was in the majority 86 percent of the time, according to the study, which was prepared by Richard J. Lazarus, a law professor at Harvard, and published in The Harvard Law Review Forum...“One of the easiest ways to reduce the risk of the swing justice swinging the other way is to assign the opinion to that justice, thereby ensuring that the opinion is one he or she will be willing to join, even if the court’s holding may be far narrower as a result,” Professor Lazarus wrote.

Harvard Law School professor Richard J. Lazarus says environmental cases often are treated with disdain by U.S. Supreme Court justices. Convincing the court to review environmental cases is “really hard,” Lazarus said while speaking to the American Bar Association’s Section of Environment, Energy and Resources fall conference Oct. 30 in Chicago. Last term, the justices decided 66 cases on the merits, out of approximately 8,500 cert petitions submitted to the court—a little less than 1 percent—Lazarus said, noting the “steady, downward trend” of merits review...Your chances of Supreme Court review are even worse if you’re an environmental case because the justices don’t like them, Lazarus said. “Everyone in this room, we share something in common that the justices don’t share,” Lazarus told the ABA audience. “We like the Clean Air Act, we like the Clean Water Act, we like RCRA, we like CERCLA. It makes our hearts go pitter-patter. The justices don’t.”

Ten U.S. Supreme Court law clerks from last term have joined Jones Day as associates, the firm announced Monday, topping its record-breaking number of seven clerk hires last year...“Ten Supreme Court clerks from one term going to a single law firm is unquestionably a stunningly large number,” Harvard Law School professor Richard Lazarus told The National Law Journal. Lazarus, who has written extensively about modern Supreme Court practice, said “when the numbers get so high—in terms of the bonus itself and the numbers of hires going to one firm—it unavoidably raises concerns about what is being purchased and the meaning of public service.”

The Supreme Court announced on Monday that it would disclose after-the-fact changes to its opinions, a common practice that had garnered little attention until a law professor at Harvard wrote about it last year...“This is a welcome step by the court to correct a problem that has persisted for more than a century, and which was exacerbated in recent years by modern technology,” Professor [Richard] Lazarus said. “The court deserves praise for its willingness to make transparent its corrections of past mistakes in its slip opinions.” But slip opinions are early versions of the court’s rulings. It is not clear, Professor Lazarus said, whether the court would take additional steps later in the editing process, which can last five years before authoritative hardcover books are produced, to make all changes public.

The U.S. Supreme Court announced Monday a series of policy changes that respond to public complaints about secret changes to the justices’ decisions, hiring "line-standers" for high-profile oral arguments and "link rot" in the court’s rulings...The move appears to be a direct response to a 2014 Harvard Law review article on the "nonfinality" of court opinions. In the article, Harvard Law School professor Richard Lazarus revealed that changes, some of them substantial, were being made to already issued opinions without notice to the public. Lazarus is a longtime friend of Chief Justice John Roberts Jr. Lazarus on Monday called the new policy “certainly a very welcome step by the justices to correct a practice that had persisted for far too long...But Lazarus cautioned that the court's new policy "stops short of making transparent the changes made between the slip opinion and the final bound volume of the U.S. Reports. To address that problem, the court needs to make publicly available the changed pages that are used in publishing the final bound version of the court’s opinions."...The court also announced new procedures to confront "link rot," the phenomenon where web-based links that are included in court opinions disappear or become broken, making it difficult for scholars and others to recover materials that were pertinent to court decisions. A 2013 study by Harvard scholars including presidential candidate Lawrence Lessig found that 50 percent of links in Supreme Court opinions do not link to the originally cited information.

President Obama’s climate-change plan will face a fierce challenge in the courts this fall, when lawyers for at least 15 states join the coal and power industries to block the carbon-reducing rules before they take effect...But other experts in environmental law say the outcome is hard to predict. “EPA will not have smooth sailing,” said Harvard Law professor Richard Lazarus, noting the high court’s June ruling against another clean-air rule came as a “dose of cold water” for environmental advocates.

An op-ed by Jody Freeman and Richard Lazarus. After releasing the Clean Power Plan this week the Obama administration must shift from offense to defense. The plan, which set the first national limits on carbon pollution from existing coal- and natural gas-fired power plants, faces two significant risks: one legal, the other political. The administration must address them to achieve the plan’s ambitious goal of cutting carbon emissions 32% below 2005 levels in 2030.

The Supreme Court dealt a blow to the Obama administration's environmental plans, deciding that efforts to sharply limit hazardous power plant emissions must also consider their costs. In a 5-4 decision Monday, the justices said the Environmental Protection Agency needs to weigh the economic impact of proposed regulations — estimated at $9.6 billion annually — on power companies and their customers...The decision "overturns one of EPA's most important pollution control rules," said Harvard law professor Richard Lazarus, an expert on environmental law. "The good news is that EPA can likely go back and reissue the same rule, this time taking costs into account. The bad news is that this may take a long time to accomplish. The Obama administration will be hard-pressed to get the job done before it goes out of office."

How could constitutional scholar and Harvard Law School professor Laurence Tribe's involvement in last week's U.S. Court of Appeals for the District of Columbia Circuit hearing on the Clean Power Plan affect the future of the rule? During today's OnPoint, Richard Lazarus and Jody Freeman, professors at Harvard Law, explain why they believe the government came out ahead during last week's federal court hearing. They also rebut Tribe's arguments against the constitutionality of the Power Plan.

President Obama’s ambitious plan to battle climate change by forcing power plants to reduce their greenhouse gases appeared to survive its first court challenge Thursday, but only because the formal rules are still pending at the Environmental Protection Agency....Industry attorneys were joined by Harvard law professor Laurence Tribe, a onetime mentor to Obama. He suggested the plan was unconstitutional because federal officials were “commandeering” states to do the bidding of Washington. Tribe, who was hired by Peabody Energy Corp., raised eyebrows last month when he testified before a House committee and described Obama’s environmental policies as “burning the Constitution.” ... “It was a good day for the government, but just the first of many to come,” said Richard Lazarus, a Harvard Law professor and environmental expert who supports the EPA rules.

The environmental case being argued on Thursday in a federal appeals court in Washington is equal parts legal freak show and serious legal business. On the serious side, it is the latest attempt by fossil-fuel interests to embalm the Environmental Protection Agency and the Obama administration's climate plan. But it is the legal sideshow orchestrated by constitutional scholar Laurence Tribe of Harvard that is unsettling to many environmental lawyers. ... Jody Freeman, another Harvard law professor, called the challenge’s timing "extremely unusual," and Harvard’s Richard Lazarus, who called the legislative history of the disputed clauses in the law "beyond novel" and "really bizarre." Both professors strongly disagree with Tribe’s arguments.  

It's as if sportswriting has invaded the energy and environment beat. President Barack Obama’s actions on climate change are “sidestepping” or making an "end run” around Congress, critics and news accounts say – including some stories by this reporter. But that depiction, more applicable perhaps to a wide receiver than a Washington politician, is at best imprecise. And at worst, it's just plain false, some legal scholars contend...Harvard Law School professor Laurence Tribe – testifying opposite Revesz in a House hearing last month – went one further, accusing the administration of "burning the Constitution."...Others, however, argue that the Clean Air Act's language is “expansive,” in the words of Harvard Law School professor Richard Lazarus, writing in the Harvard Law Review in March 2013. “The relevant language has lain largely dormant for decades, but is now ripe for a presidential awakening,” Lazarus argued.

Laurence H. Tribe, the highly regarded liberal scholar of constitutional law, still speaks of President Obama as a proud teacher would of a star student. “He was one of the most amazing research assistants I’ve ever had,” Mr. Tribe said in a recent interview. Mr. Obama worked for him at Harvard Law School, where Mr. Tribe has taught for four decades...Which is why so many in the Obama administration and at Harvard are bewildered and angry that Mr. Tribe, who argued on behalf of Al Gore in the 2000 Bush v. Gore Supreme Court case, has emerged as the leading legal opponent of Mr. Obama’s ambitious efforts to fight global warming...“The administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless,” Jody Freeman, director of the environmental law program at Harvard Law School, and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe’s brief on the Harvard Law School website.

In a speech on climate change delivered during her visit to China last month, Harvard President Drew Faust described the problem as “a struggle, not with nature, but with ourselves.” During Climate Week April 6-10, Harvard will take a long look at the ongoing struggle to find man-made solutions to this man-made problem...At Harvard Law School, faculty members are debating President Barack Obama’s proposed power plant rules, which aim to reduce greatly the carbon dioxide emissions from existing facilities. Two of the nation’s top environmental lawyers, Jody Freeman, the Archibald Cox Professor of Law and director of the School’s Environmental Law Program, and Richard Lazarus, the Howard and Katherine Aibel Professor of Law, have posted online rebuttals to constitutional scholar and Carl M. Loeb University Professor Laurence Tribe’s contention that the proposed rules are unconstitutional.

Climate-change activists and advocates seldom have trouble finding villains. But recently, they've found a new one in a strange place: famed legal scholar and Obama mentor Laurence Tribe, in his office at Harvard Law School. Tribe has been the highest-profile legal scholar to criticize the Obama administration's rules for carbon-dioxide emissions from coal plants, which were formally proposed in June 2014. (He's one of the few law professors who is frequently and plausibly referred to as an "icon.") In a formal comment submitted to the EPA, a Wall Street Journal column, a House energy committee hearing last week, and other venues, Tribe has argued against the rule, suggesting both that it runs contrary to the relevant statute and that it violates the Fifth and Tenth Amendments to the Constitution. ... And Tribe's opponents also bring significant legal firepower to the discussion. One opponent is Richard Revesz, dean emeritus of New York University Law School, who testified in favor of the rule in last week's House hearing and wrote a New York Times op-ed Thursday disagreeing with Tribe. Two others are Richard Lazarus and Jody Freeman, colleagues of Tribe's at Harvard Law.

Laurence H. Tribe, the liberal icon and legal scholar, has grabbed headlines in recent weeks for publicly attacking President Obama’s signature climate change initiative — the Clean Power Plan — which would regulate carbon emissions from power plants. He was retained as an independent expert by Peabody Energy, the world’s largest private-sector coal company, and is representing it in a lawsuit that seeks to invalidate the plan...In the estimation of his Harvard Law School colleagues Jody Freeman and Richard Lazarus, “Were Professor Tribe’s name not attached to” these arguments, “no one would take them seriously.” But even if his claims don’t help Peabody in federal court, they are undoubtedly useful in the court of public opinion, where sentiment can be swayed by legal arguments, however weak, from a scholar of Professor Tribe’s reputation.