Richard Lazarus

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.