Richard Lazarus

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.

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.

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.

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.

Supreme Court Justice and liberal icon Ruth Bader Ginsburg, who recently passed away at the age of 87, was best known for championing women’s rights. But she also leaves behind a remarkable environmental legacy. Harvard Law Professor Richard Lazarus, author of “The Rule of Five: Making Climate History at the Supreme Court,” believes the “classic example” of Ginsburg’s contribution to environmental jurisprudence was the 2007 case Massachusetts v. EPA, which is widely considered the most important environmental case ever decided by the US Supreme Court. This was the case in which the court established that EPA had authority to regulate greenhouse gases under the Clean Air Act, an idea that EPA itself had rejected. No less importantly, according to Lazarus, the case established that a plaintiff who alleged climate injury had the right to bring a case in federal court — “a hugely significant decision in its own right,” according to Lazarus. In several other cases, Ginsburg not only cast the decisive note, she wrote the opinion for the court, which Lazarus says was even more notable. Of the cases for which Ginsburg wrote the opinion for the majority, he adds, the most significant was Friends of the Earth v. Laidlaw. In this case, a group of citizens brought a lawsuit under the Clean Water Act alleging hundreds of violations of mercury emissions rules by the Laidlaw industrial facility in the area around South Carolina's North Tyger River. The Court of Appeals had held that the environmentalists lacked the requisite injury to bring the lawsuit, but the Supreme Court reversed the previous ruling. “Justice Ginsburg wrote a tour de force in that opinion,” Lazarus says. Her opinion not only established that these particular environmental plaintiffs had standing to bring their particular Clean Water Act suit.

A short-handed Supreme Court — driven from its courtroom by the pandemic, grieving over the loss of a colleague and awaiting the outcome of a divisive confirmation battle — will return to the virtual bench on Monday to start a term that will present Chief Justice John G. Roberts Jr. with a daunting test. “The chief’s leadership of the court, which just a few weeks ago appeared to be at its zenith, is now in peril,” said Richard J. Lazarus, a law professor at Harvard who has taught courses on the Supreme Court with Chief Justice Roberts. “An addition of yet another very conservative justice could quickly eliminate the chief’s ability to steer the court toward moderation.” The court will again hear arguments by telephone, starting with a timely case on the role of partisanship in judging, a subject that will also figure in Senate hearings on the Supreme Court nomination of Judge Amy Coney Barrett, which are scheduled to start a week from Monday. President Trump and Senate Republicans have been working hard to speed her path to the seat left vacant by the death last month of Justice Ruth Bader Ginsburg...Professor Lazarus said the court’s last term had reassured the public that “there was some truth to the chief justice’s admonition that the justices, while on balance very conservative, were not political partisans.” “All that hard-earned good will may soon be in tatters because of how President Trump has responded to Justice Ginsburg’s passing,” he added. “No matter how hard the chief and his colleagues try to stay above the political fray, it is a battle they cannot win when the president treats his nominees to the court as political loyalists.”

Amy Coney Barrett's likely ascension to the Supreme Court would affect climate policy beyond shoving the court rightward in the abstract. Why it matters: If Joe Biden wins the presidential election, his regulations and potential new climate laws would face litigation that could reach the high court. If Trump wins, ongoing cases over his dismantling of Obama-era policies could also reach SCOTUS. Whoever wins, a court with a 6-3 conservative majority will issue rulings that undoubtedly have ripple effects...Several analysts point to Barrett's writings that suggest support for "non-delegation doctrine," a legal theory that massively restricts how much power Congress can hand off to executive agencies. A related area: She could take a narrow view of the "Chevron deference," or the idea agencies deserve running room when statutes are vague or silent on a topic. Both matter when it comes to using the Clean Air Act to tackle global warming, because the 50-year-old law does not directly address the topic...Axios also asked Harvard Law School's Richard Lazarus about whether the more conservative court might upend Massachusetts v. EPA: "While the Court sometimes overrules it constitutional rulings, it almost never overrules its rulings on the meaning of federal statutes. I don’t think they would do it here."

Romaine Bostick & Taylor Riggs bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street and tackle the SCOTUS impact on the Affordable Care Act, the delayed TikTok ban and oil's lackluster demand Guests Today: Meb Farber of Cambria Investment Management, Jonathan Gruber of MIT, David Conrod of FocusPoint, Jose Antonio Vargas of Define American, Chris Davis of Davis Advisors, Jason Katz of UBS, Richard Lazarus of Harvard Law School.

President Trump announced his nomination over the weekend of conservative Judge Amy Coney Barrett as a replacement for Supreme Court Justice Ruth Bader Ginsburg, who died Sept. 18. If Barrett is confirmed by the Republican majority in the Senate, before or after the November election, Trump will have managed to seat three right-wing justices on the country’s highest court and cement an ironclad 6-3 conservative hegemony for a generation to come. That may thrill Trump’s base and the conservative legal movement that has seen the Trump administration fill numerous federal judicial positions with its ideological allies. But Trump’s impact on the Supreme Court has also stirred growing alarm and anger. The president’s critics and opponents are furious over the naked hypocrisy of many of the same Republican senators who blocked President Barack Obama’s nominee in 2016 on grounds that such a weighty decision should not proceed in the middle of an election year. Moreover, Trump’s critics see his latest move as part of a broader autocratic power play. For months, the president has openly called into question the legitimacy of the upcoming election, ahead of which polls show him trailing by a significant margin nationally. A recent article by the Atlantic’s Barton Gellman outlined the all-too-real, looming set of constitutional crises that could follow, should Trump attempt to remain office or question the credibility of the vote. Key to such an attempt would be both Trump’s considerable executive powers and the conservative majority in the Supreme Court, which Trump has already admitted may be crucial to maintaining his place in the White House. It is difficult for the public to see the court as politically neutral “when a primary reason being given in favor of an expedited Senate confirmation hearing is … so the new justice can be there in time to vote in a way that will ensure the reelection of the president who just nominated them,” Richard J. Lazarus, a Harvard University law professor, told The Washington Post’s Robert Barnes.

An article by Richard Lazarus: The center of gravity of Justice Ruth Bader Ginsburg’s fame is justifiably focused on her pioneering work both as a young attorney and later as a justice for gender equality. Ginsburg’s own career embodied the women’s liberation movement and she clearly inspired generations of women as well as men to follow her example. What is less appreciated is the significant role that Justice Ginsburg played in environmental law on the high court, and how that record, in turn, reveals what made her such a great justice. Ginsburg came to the court in 1993 with no particular reputation on environmental issues. She had never practiced environmental law as an attorney and while serving as a judge on the U.S. Court of Appeals for the D.C. Circuit, she displayed no particular affinity toward environmental protection. If anything, then-Judge Ginsburg enjoyed a straight-shooter, pro-business reputation. Business community support of her Supreme Court nomination partly explains why Ginsburg was so easily confirmed by the Senate, 96-3, notwithstanding her obvious liberal views on otherwise potentially controversial social issues such as abortion rights. Once on the court, however, Ginsburg quickly became an important vote in environmental cases. What is most telling about her environmental law record, however, is its underscoring of both her integrity and her extraordinary skills as a jurist. Most simply put, although Justice Ginsburg’s fame is understandably rooted in her championing gender equality, the justice’s greatest contributions were rooted not in her ideology but in her skills as one of the most talented lawyers ever to serve on the court. Environmental advocates appearing before Ginsburg knew the justice was never a vote they could assume. Her vote always had to be earned. And the only way to earn that vote would be the force and persuasiveness of their legal arguments. The justice’s vote would not be decided by whatever sympathy she might privately harbor for the environmental protection policies they were promoting. Ginsburg was a progressive liberal, to be sure, but she was first and foremost an outstanding lawyer who applied her extraordinarily analytic skills with rigor and precision to the legal issues before the court.

How do you tell the story of an institution as enigmatic as the United States Supreme Court? On Sunday evening, Ruth Marcus, Adam Cohen and Richard Lazarus, three Harvard Law School graduates and authors of recent nonfiction works about the high court, set out to answer this question. Moderated by reporter Dahlia Lithwick, the panel of authors talked all things Supreme Court, from its structure to its most recent rulings, in a debate-style panel as part of the latest event in the 2020 Martha’s Vineyard Author Series. Opening the event with a bang, Ms. Lithwick posed the panelists with a polarizing question that set the tone for the rest of the discussion—whether they see the court as a political entity or purely a legal one...Drawing on his time representing environmental groups and governments in 40 Supreme Court cases, Mr. Lazarus said that to him, the court is a legal institution, stationed above politics. “When you have all the top political commentators, left and right, and both of them want to propel just the story [of a political court] it’s very hard for a second story to ever have any value to people,” said Mr. Lazarus...Mr. Lazarus on the other hand, stressed the importance that good lawyers with strong arguments play in the court’s rulings. But Ms. Marcus pushed back, citing the limits of lawyering under the current President. Keeping up a brisk pace, the scholars touched on a wide range of topics posed by viewers, like the impact of the Presidency on the court and whether or not the court should adopt structural reforms, like adding additional justices or instating term limits.

If Democrat Joe Biden defeats President Trump this November, his EPA will have a blank slate for writing climate rules. Because the Trump administration spent 3 ½ years demolishing its predecessor's Climate Action Plan, Biden's team would have an opening to update rules for carbon, methane and hydrofluorocarbons that would exceed their Obama-era counterparts or be more tailored to the political, judicial and economic realities of the 2020s. To be sure, a departing Trump EPA would leave finalized rules for power plant carbon, vehicle fuel economy, and oil and gas development, among other things, but most of those regulations haven't faced court reviews, allowing an incoming administration to ask that they be returned to the agency. That request — if granted — would clear the path for a Biden EPA to write new rules to go with the former vice president's promise of rejoining the Paris Agreement and the global effort to contain global warming...Meanwhile, the Trump administration has succeeded in moving the courts to the right, up to and including the Supreme Court. Justice Anthony Kennedy, the swing vote who retired from the court two years ago, usually sided with the court's liberal members on environmental cases like Massachusetts v. EPA, which established that EPA has the authority and obligation to address climate change under the Clean Air Act. The two justices Trump has nominated don't have that reputation...Richard Lazarus, a Harvard Law School professor and author of "The Rule of Five," which chronicles Massachusetts vs. EPA, said the agency under Biden would be aggressive. But he agreed that a conservative Supreme Court would be a barrier. "They will try to do more on power plants under a less ambitious legal theory," he predicted, adding that that would probably mean on-site emissions reductions.