Richard Lazarus

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."

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.

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.

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.

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.

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.

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.

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…

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."

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.

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.

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.”

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.'”

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.

“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.