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Richard Lazarus

  • The Supreme Court Case That Could Upend Efforts to Protect the Environment

    January 11, 2022

    Next month, the Supreme Court will hear oral arguments in a case involving an Obama-era power-plant rule that’s no longer in effect, and never really was.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.

  • The Ghost of Anne Gorsuch Burford

    January 11, 2022

    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…

  • Vaccine mandate regulations are under the Supreme Court’s microscope

    January 7, 2022

    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."

  • Supreme Court’s conservatives on the verge of ending right to abortion

    December 16, 2021

    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.

  • With Roe at Risk, Justices Explore a New Way to Question Precedents

    December 13, 2021

    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.

  • Future of abortion rights depends on a Supreme Court for which compromise seems elusive

    December 2, 2021

    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.”

  • Adira Levine

    Harvard Law School student wins ABA administrative law writing competition

    November 23, 2021

    Adira Levine ’22, a third-year Harvard Law School student, was recently recognized by the American Bar Association’s Section of Administrative Law and Regulatory Practice for her essay on the intersection of the Freedom of Information Act (FOIA) and environmental law.

  • Supreme Court’s Unusual Decision to Hear a Coal Case Could Deal President Biden’s Climate Plans Another Setback

    November 8, 2021

    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.'”

  • Supreme Court to Hear Case on E.P.A.’s Power to Limit Carbon Emissions

    November 2, 2021

    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.

  • A Century-Long ‘Reign of Error’ for a Supreme Court Typo

    October 18, 2021

    “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.

  • Supreme Court of the United States at night

    Pay no attention to the justices behind the curtain

    September 23, 2021

    Charles Fried, Richard Lazarus ’79, Tejinder Singh ’08, and Carol Steiker ’86 discuss the Supreme Court’s increasingly important emergency powers known as its “shadow docket.”

  • A group of ten students pose outside at granite bench on the Harvard Law School campus.

    Tips for law school success

    August 31, 2021

    Harvard Law School faculty and staff share what they wished they’d known about doing well and staying well in law school — useful whether you’re a first-year student just beginning your journey, an LL.M., S.J.D., or a 3L preparing to make your mark on the world.

  • Man walking away from a podium by an American Flag and a sign that says Department of Justice Washington

    Off the bench and into the breach

    June 30, 2021

    Merrick Garland ’77 made the unusual choice to leave a lifetime appointment on the nation’s second most influential court to instead lead a federal agency with roughly 115,000 employees. Unusual, but not surprising, say those who know him well.

  • Republican AGs Press Supreme Court on EPA Climate Authority

    April 30, 2021

    West Virginia and other states are taking a critical climate question to the U.S. Supreme Court, asking the justices to embrace a narrow interpretation of federal authority to regulate planet-warming emissions...The Supreme Court has previously expressed interest in the EPA’s regulatory authority over greenhouse gases, taking the unprecedented step of freezing the Obama-era Clean Power Plan before it was litigated in lower courts. But the states’ new petition faces a “vanishingly small chance” of being granted, Vermont Law School professor Patrick Parenteau said, as the Biden administration has already said it doesn’t plan to revive the Trump or Obama rules. “Better to wait to see what EPA comes up with,” he said. Harvard Law professor Richard Lazarus agreed, but noted that the case could present a test for the conservative Supreme Court. “The petition provides an opportunity to measure to what extent the new six-Justice conservative majority on the Supreme Court is aggressively looking for opportunities to cut back on EPA’s authority even in the absence of the normal indicia necessary for Supreme Court review,” he said in an email.

  • The fight for environmental justice

    April 27, 2021

    North Carolina is one of the nation’s largest producers of pork. The industry is primarily centered in agricultural portions of Eastern North Carolina, home to a number of Black and Indigenous communities, and a surging Latinx population...The coexistence of air pollutants and communities of color isn’t an anomaly, says Hannah Perls, J.D. ’20, but is representative of the environmental injustices that many communities of color across America live with... “There’s that great saying – the system isn’t broken; it’s working exactly as it was designed,” she says. “Often environmental justice communities live at the intersection of several inequitable and interlocking systems and ideologies: racism, capitalism, and white supremacy, among others.” ... “Environmental justice means that you need involvement and participation of peoples of all colors and all income levels in the development, implementation, and enforcement of our protection laws,” says Richard Lazarus, the Howard J. and Katherine W. Aibel Professor of Law. “This is not supposed to be top-down.” Lazarus, who leads the EELP alongside Jody Freeman, the Archibald Cox Professor of Law, has spent much of the past 30 years of his legal career studying and trying to solve the environmental disparities faced by communities of color, and most recently worked on the Biden administration’s transition team and helped elevate the issue to be a top priority for the president.

  • A demonstrator holding a sign the reads, System Change, Not Climate Change, with a drawing of the Earth.

    A focus on the environment

    April 22, 2021

    In recognition of Earth Day, we highlight some recent work and perspectives of Harvard Law's students and scholars committed to environmental change.

  • Biden speaking at a podium

    Freeman, Lazarus discuss Biden administration’s reversal of Trump’s environmental legacy

    April 22, 2021

    At a recent event, Harvard Law School Jody Freeman and Richard Lazarus gave an account of the environmental policy swing underway in the Biden administration.

  • Collage of people working from home

    Going remote

    March 3, 2021

    Ten Harvard Law School faculty share a behind-the-scenes look at their Zoom studios and the innovative approaches they employed to connect with students.

  • Kids Climate Litigants Push High Court Fight Some Call Reckless

    February 11, 2021

    The young plaintiffs behind an ambitious climate lawsuit are taking their case to the U.S. Supreme Court, despite warnings from environmental lawyers that the attempt could backfire. Lawyers for the 21 children and young adults in Juliana v. United States quickly announced plans Wednesday to file a Supreme Court petition after the U.S. Court of Appeals for the Ninth Circuit refused to revive their claims that the federal government has violated their constitutional right to a stable climate system. Julia Olson, who represents the plaintiffs, said she and her clients were unmoved by detractors who worry a Supreme Court fight would undermine broader environmental litigation...Outside lawyers, many of whom are sympathetic to the plaintiffs’ novel claims, say taking the issue to the high court could spell disaster for environmental interests if the justices agree to review the case. The Ninth Circuit’s rehearing denial is “no doubt enormously disappointing” to the plaintiffs after their more than five-year effort to make the government take action “urgently needed to avoid the truly catastrophic consequences of climate change that the entire planet now faces,” Harvard Law professor Richard Lazarus said. “For making clear the depth of the government’s past decades-long lapses in the face of industry malfeasance, the plaintiffs and their lawyers deserve the nation’s thanks,” he said. But Lazarus cautioned that seeking Supreme Court review would be “a serious strategic mistake” for those who care about climate issues. “The result would far more likely be the establishment of binding legal precedent by the Supreme Court that sets back critically important efforts to address the climate issue rather than a Supreme Court ruling that promotes those efforts,” he said.

  • Wendy Jacobs

    Wendy Jacobs: 1956-2021

    February 10, 2021

    Wendy Jacobs, one of the nation’s most highly celebrated environmental law experts, was the founding director of the first-ever environmental law and policy clinic at Harvard Law School.

  • Kavanaugh Fixes Error in Election Opinion After Vermont Complaint

    October 30, 2020

    Justice Brett M. Kavanaugh on Wednesday corrected an error in an opinion issued as part of a Supreme Court ruling that barred Wisconsin from counting mail-in ballots that arrive after Election Day. Though not unheard-of, such revisions are rare, experts said, adding that Justice Kavanaugh’s change highlighted the court’s fast pace in handling recent challenges to voting rules. In the opinion, which was issued on Monday and alarmed Democrats worried about mail ballots being counted, Justice Kavanaugh wrote that while some states had changed their rules around voting in response to the pandemic, others had not. “States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots,” he wrote in his original concurring opinion, which was attached to the 5-to-3 ruling against the deadline extension in Wisconsin. The decision, issued just over a week before the presidential election, immediately drew intense scrutiny, and Justice Kavanaugh’s opinion prompted a complaint from Vermont’s secretary of state, Jim Condos. He pointed out that the state had, in fact, changed its rules to accommodate voters worried about showing up to polling stations during the pandemic...The Supreme Court began noting corrections and changes in opinions following a 2014 study that showed how, for years and without public notice, it had been altering its decisions long after they were issued, said Richard Lazarus, a law professor at Harvard University and the study’s author. During the 2019-20 session, the court noted it had changed errors or typos in written decisions about half a dozen times, he said. The court typically issues several dozen decisions each term. In this case, Professor Lazarus said, Justice Kavanaugh’s error was troubling because it revealed the rapid-fire pace with which the court, days before a presidential election, is making decisions that have enormous implications for the country. “The mistake he made is not of an earth-shattering, catastrophic nature but it does underscore the risk of writing quickly, not writing more deliberately and not taking time,” he said...When the justices do not have time to send opinions back and forth to one another and deliberate together, “they’re more likely to make mistakes,” Professor Lazarus said.