Richard Lazarus

An op-ed by Jody Freeman and Richard J. Lazarus. When Mitch McConnell sent his recent letter to the nation’s governors urging them to ignore the White House’s upcoming clean-power rules, it was striking for two reasons. First, as the headlines pointed out, it’s a dramatic moment when a congressional leader openly tries to rally the states against a new federal policy. And second, McConnell’s legal justification relies on none other than Laurence Tribe—Barack Obama’s former law professor, and one of the nation’s top liberal law scholars—to argue that the upcoming EPA rules are unconstitutional.

At Harvard Law School, contentious legal debates are commonplace. Whether in a classroom, over lunch, or in the pages of one of the school’s many legal journals, professors and students respond to, critique, and question one another’s views. But notably, over the past week, University professor Laurence H. Tribe ’62 and Law School professors Richard J. Lazarus and Jody Freeman, in what Tribe described as an “uncommon event in Harvard Law School’s history,” took the discussion to the Harvard Law Today website. The exchange began after Tribe testified before the U.S. House of Representatives Subcommittee on Energy and Power on the Environmental Protection Agency’s “Clean Power Plan.”

Earlier this week, Harvard law professor Laurence Tribe testified before Congress on the legality of the Environmental Protection Agency’s plans to regulate greenhouse gas emissions from coal-fired power plants under Section 111 of the Clean Air Act. Tribe’s testimony garnered attention because he challenged the lawfulness of EPA plans and raised several constitutional concerns...Tribe’s criticisms of the EPA attracted attention not just because he is a prominent liberal law professor, but also because he briefly worked in the Obama Administration (though not on environmental matters) and was one of the president’s professors (and has sometimes been described as a “mentor”). Tribe’s testimony, and his suggestion that the EPA’s climate plans involved “burning the Constitution,” also prompted some pushback. Most notably, two of his colleagues at Harvard Law School — Richard Lazarus and Jody Freeman — penned a response on the HLS Web site, challenging Tribe’s legal and constitutional analysis, with an emphasis on the latter. Tribe, in turn, wrote a lengthy rejoinder, also on the HLS Web site. This back and forth is a preview of the legal battle that awaits the EPA’s Clean Power Plan.

Natural gas power company Calpine Corp. and a group of Harvard University law professors on Thursday told the D.C. Circuit that the EPA must be allowed to finalize its greenhouse gas reduction plan for existing power plants before any legal challenges may be decided. The U.S. Environmental Protection Agency’s proposed Clean Power Plan has been challenged by coal mining company Murray Energy Corp., along with a variety of states and other industry groups. They have alleged the agency lacks the authority to issue the rule and that the rule would harm their economic health. But in separate amici briefs, Calpine and Harvard law professors Richard Lazarus and Jody Freeman said the EPA is on firm ground.

An op-ed by Richard Lazarus. The President’s decision to open up the Atlantic coast to offshore drilling exploration is a clear expression of his “all-of-the-above" energy strategy. It is also a clear exercise of political horse-trading. No doubt the President hoped to take the sting out of his decision to eliminate drilling off of parts of Alaska by offering parts of the Mid- and South-Atlantic, which have been closed since 1990, in return. In April 2010, in a similar political gambit, the President courted conservative support for his then-pending climate bill by proposing to open the Atlantic coast for drilling. Anticipating environmental opposition, the President confidently asserted that “oil rigs today generally don’t cause spills.” It proved an unfortunate choice of words.

Peter Keisler might be the only lawyer who's argued five cases before the Supreme Court and has appeared in a TV soap commercial....Harvard Law School professor Richard Lazarus said Keisler is successful because of his ability to read the mood of the court both in his briefs and during oral arguments. Keisler, he said, delivers the argument that the justices will find most attractive. "He knows how to go for a win," Lazarus said. "He has an instinct for the pragmatic, not the jugular. He pitches things to make them look reasonable. "He's not a true believer. He's not a flamethrower. He wants to win the case."

Congress does not hide elephants in mouse holes. That colorful legal concept — which means government agencies can’t find sweeping new powers by re-interpreting minor sections of existing law — may determine the success or failure of proposed EPA power-plant regulations, rules that some observers have described as the nation’s most ambitious action on climate change to date...“It’s a beautiful rule. It is incredibly creative. The question is, Is it legal?” said Richard Lazarus, the Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School (HLS)...In a discussion on the proposed regulations Wednesday at the Maxwell-Dworkin building, Lazarus and Archibald Cox Professor of Law Jody Freeman, director of HLS’ Environmental Law Program, said that the proposed rules not only step into the gap created by Congress’ refusal to pass climate legislation, but also have the potential to both transform the national energy scene and invigorate international climate-change negotiations.

If the last term is any guide, the dominance of veteran advocates and their law firms at the lectern of the U.S. Supreme Court will only continue when the court returns Oct. 6. In the term that ended in June, the justices decided 67 argued cases, less than half the caseload they handled in 1990. Three firms argued seven cases each and two argued in six — meaning that just five firms fielded lawyers on one side or the other in roughly half of the court's oral arguments. "That is truly remarkable," Harvard Law School professor Richard Lazarus said about the numbers. Lazarus has written extensively about the ­development of the elite Supreme Court bar. Less than 30 years ago, the late Chief Justice William Rehnquist said there was no Supreme Court bar as such.

At the U.S. Supreme Court, the dominance of veteran advocates and their law firms only continues to grow. In the term that ended in June, the justices decided a meager 67 argued cases, less than half the caseload they handled in 1990. Three firms argued seven cases each, and two argued in six—meaning that just five firms fielded lawyers in half of the court's cases. "That is truly remarkable," says Harvard Law School professor Richard Lazarus of these numbers. Lazarus has written extensively about the development of the elite Supreme Court bar. In 2009, he went so far as to call it "docket capture" of the high court by a small group of lawyers who tend to file, and win, business cases.

The Supreme Court concluded its annual term last month once again in acrimony, this time over contraceptives and collective bargaining. That followed earlier schisms over campaign finance and prayer at town council meetings. Yet Chief Justice John Roberts sees friends everywhere…"Many times they literally are friends," says Harvard law professor Richard Lazarus, a (literal) friend of the chief justice. Besides, he says, "I think it does have an impact on the atmosphere. I think it tends to make it less hostile, less accusatory, less of an effort of one side to demonize the other."

The U.S. Supreme Court gave the Environmental Protection Agency the green light to regulate greenhouse gases that are emitted from new and modified utility plants and factories on Monday…"This was kind of reminiscent of Macbeth's final soliloquy — a lot of sound and fury signifying nothing," said Harvard Law professor Richard Lazarus, who specializes in environmental law. "The EPA's authority and ability to use the Clean Air Act to address climate change is essentially unchanged after today."

In a big win for environmentalists, the Supreme Court on Monday effectively endorsed the Obama administration’s efforts to regulate greenhouse gas emissions from sources like power plants, even as it criticized what it called the administration’s overreaching…The decision, said Richard J. Lazarus, a law professor at Harvard, “gave the agency a tongue-lashing and suggested the potential for some significant limitations on how the agency chooses to exercise its authority in the future.”… That statement was “a warning shot,” said Jody Freeman, a law professor at Harvard. “It suggests that the courts will look skeptically at assertions of authority that are very new and very far-reaching.”

The Obama administration on Friday scored its third major legal victory on air pollution in less than month when a federal appeals court rejected an industry challenge to its latest health standards for fine particulate matter, or soot. The unanimous ruling by a three-judge panel of the the U.S. Court of Appeals for the District of Columbia Circuit found the U.S. Environmental Protection Agency was within its discretion in 2012 when it tightened limits on lung-damaging soot…“The three rulings together create quite the trifecta by significantly furthering the administration’s agenda on addressing climate change through the existing Clean Air Act,” said Richard Lazarus, an environmental law professor at Harvard Law School.