Richard Lazarus

The Supreme Court closed a pivotal annual term last week bearing the unmistakable imprint of Chief Justice John Roberts, who embraced the role of institutionalist as he sought to keep the court above nation’s intense partisanship during a time of national upheaval. Over the course of 55 cases decided this year—involving such politically sensitive issues as access to President Trump’s financial documents, gay rights, workplace discrimination and religious exemptions from providing contraceptive coverage—the chief justice was in the majority in all but two decisions...Taken together, the court’s output reflected the overarching message Chief Justice Roberts has sought to deliver since taking the helm in 2005: The judiciary stands apart from the partisanship that consumes its coequal branches of government, Congress and the presidency. “He believes very strongly that people should not look at the court and see Republicans and Democrats, that they not see judges as mere partisans,” said Harvard law professor Richard Lazarus, a longtime friend of the chief justice. “It’s an uphill battle, both against the outside forces, and sometimes within the court itself.” Mr. Lazarus says that goal plays a part in the votes the chief justice casts. In 2016, for instance, he dissented from a 5-4 decision invalidating a Texas law imposing burdensome requirements on abortion providers. But last month, he cast the deciding vote to strike down a similar Louisiana measure, writing that he felt bound to follow the precedent despite his disagreement...When possible, Chief Justice Roberts “doesn’t want 5-to-4. He wants to see 6-to-3 or 7-to-2,” said Mr. Lazarus, whose own recent book on the court is titled “The Rule of Five.”

In a series of stunning decisions over the past two weeks, Chief Justice John G. Roberts Jr. has voted to expand L.G.B.T.Q. rights, protect the young immigrants known as Dreamers and strike down a Louisiana abortion law. In all three decisions, he voted with the court’s four-member liberal wing. On Tuesday, he joined his usual conservative allies in a 5-to-4 ruling that bolstered religious schools. The decisions may be hard to reconcile as a matter of brute politics. But they underscored the larger truth about Chief Justice Roberts: 15 years into his tenure, he now wields a level of influence that has sent experts hunting for historical comparisons...Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision vindicated Chief Justice Roberts’s statements. “The chief is sending a broader message to both parties, and this time in this case it is the Republicans who take the hit,” Professor Lazarus said. “But the message would be the same if it were the Democrats and their favored position had lost.” The message was this, Professor Lazarus said: “You cannot expect us to behave like partisan legislators.” The abortion case concerned a Louisiana law that was essentially identical to one from Texas that the court had struck down just four years ago, before Mr. Trump appointed two new justices. In dissent in 2016, Chief Justice Roberts had voted to uphold the Texas law. Professor Lazarus said he suspected the chief justice was offended by the idea that a change in the composition of the court should warrant a different outcome in what was, at bottom, the identical case.

Every Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows. In a remarkable stretch of decisions over the past two weeks, Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought here as children...Roberts’s admirers speculate he was turned off by the attempt to have the court’s 2016 decision overturned because the court’s membership had changed with Trump’s two appointments. Too soon, said Richard Lazarus, a Harvard law professor who has known Roberts since law school days and who has taught summer courses with the chief justice. “The chief’s clear message is that is not how justices do their work,” Lazarus said in an email. “It is a shot across the bow at presidential candidates who campaign with lists of nominees based on the assumption that, if confirmed, they will of course necessarily vote based on the preferences of the majority who supported that candidate.”

Twice this week, the Supreme Court thrilled liberals and infuriated conservatives with its decisions, putting the spotlight once again on the man in the center chair, Chief Justice John Roberts. NPR's legal affairs correspondent Nina Totenberg reports. There is much more to come from the court in the coming weeks, but Chief Justice Roberts is clearly putting his stamp on the term so far. He didn't write the court's 6-to-3 opinion on LGBT employment rights, but he joined it and almost certainly assigned the opinion to fellow conservative Neil Gorsuch. Two days later, Roberts wrote the court's opinion blocking the Trump administration's attempt to revoke the Obama-era program protecting the so-called DREAMers from deportation. Senate Democratic leader Chuck Schumer, who voted against Roberts' confirmation, yesterday choked up on the Senate floor...Harvard law professor Richard Lazarus, who's known Roberts for decades, says that early in Trump's tenure, the chief justice ultimately gave the administration a break in the travel ban cases, barring travelers from some mainly Muslim countries. But since then, Trump has put the courts to a constant stress test. And as Lazarus sees the DACA ruling: "I think the central message here is the law applies to everybody, and that includes the president of the United States. And I'm not going to give you any breaks here."

The Supreme Court has extended a life-support line to some 650,000 so-called "Dreamers" on Thursday, allowing them to remain safe from deportation. ... TOTENBERG: At the end of the day, of course, the man of the hour is Chief Justice Roberts. Amid a politicized and polarized society, he repeatedly tries to portray the court as apolitical. He sees the growth of organizations on the hard right, like the Judicial Crisis Network, and on the hard left, like Demand Justice, each trying to stack the court with like-minded justices or to pack the court by expanding the number of justices. Harvard law professor Richard Lazarus has known the chief justice for decades. RICHARD LAZARUS: What these decisions this week underscore is we have a chief justice who is, plainly, working hard to try to demonstrate to the American people that the court, unlike the other two branches, is doing its job. He wants the American people to believe there's a thing called law, and a justice's job is to apply it.

The Trump administration, in twin actions to curb environmental regulations, moved on Thursday to temporarily speed the construction of energy projects and to permanently weaken federal authority to issue stringent clean air and climate change rules. President Trump signed an executive order that calls on agencies to waive required environmental reviews of infrastructure projects to be built during the pandemic-driven economic crisis. At the same time, the Environmental Protection Agency has proposed a new rule that changes the way the agency uses cost-benefit analyses to enact Clean Air Act regulations, effectively limiting the strength of future air pollution controls...Environmental activists and lawyers questioned the legality of the move and accused the administration of using the coronavirus pandemic and national unrest to speed up actions that have been moving slowly through the regulatory process. “When it comes to trying to unravel this nations’ environmental protection laws, this administration never sleeps,” said Richard Lazarus, professor of environmental law at Harvard University...Mr. Lazarus, the Harvard professor, noted that the environmental policy act provides for federal agencies to consult with the White House on whether “emergency circumstances” make it necessary to waive requirements, but does not give power to waive environmental requirements. “The president’s assertion of authority to waive the application of environmental laws in the way described seems wholly untethered from law,” Mr. Lazarus said. Democratic leaders said the administration’s actions would be particularly harmful to communities of color.

There is much that we still don’t know about the coronavirus and the disease it causes, Covid-19. But for all the mysteries that scientists are still working to solve, we have known from the start that this virus unleashes a brutal assault on the respiratory system, and is especially dangerous for people with lung and heart disease...A new Harvard study has further connected the dots, showing a link between exposure to air particle pollution and severe cases of coronavirus. Despite the evidence, the Trump administration has continued its quest to limit restrictions on the fossil fuel industry, which is the source of much of this pollution...The current PM 2.5 standard requires air particle levels to be limited to 12 micrograms per cubic meter. But the EPA’s draft review in September 2019 estimated that the current PM 2.5 standards are associated with 45,000 deaths annually, and tightening them to 9 micrograms per cubic meter could reduce deaths by up to 27%. Still, the EPA decided to leave the regulations untouched... “It’s a stunning decision by the EPA, but one can’t say that it’s unexpected, only because this administration has made several of these,” said Richard Lazarus, a professor of environmental law at Harvard Law School...In its new cost analysis, the EPA found that the costs of limiting these hazardous pollutants — estimated at between $7.4 billion and $9.6 billion annually — now outweigh the benefits...Lazarus says this could have big consequences when it comes to how the agency regulates other pollutants, and could open existing rules up to challenges in the courts. “They’re indicating that they’re going to measure costs and benefits in a very narrow way, which will reduce the level of benefit calculated as compared to the costs,” Lazarus said. “In future rulemaking, it will be harder to justify tougher hazardous air-pollution standards under the Clean Air Act.”

The Supreme Court on Thursday rejected the Trump administration’s reading of a key part of the Clean Water Act as creating an “obvious loophole” in its enforcement, and gave a partial win to environmentalists in a case from Hawaii. The court ruled 6 to 3 that a wastewater treatment plant in Hawaii could not avoid provisions of the act, which regulates the release of pollutants into rivers, lakes and seas, by pumping the pollutants first into groundwater, from which they eventually reach the ocean. Justice Stephen G. Breyer’s compromise language said an Environmental Protection Agency permit is required when a discharge is “the functional equivalent” of a direct release into navigable waters...In the Hawaii case, environmental law experts agreed that the court’s decision will resonate. The test endorsed by the court’s majority is “one under which environmentalists can prevail in most every kind of case that environmentalists have brought under the Clean Water Act,” said Richard Lazarus, an environmental law expert at Harvard Law School.

Hanging on the wall of his Harvard Law School office, Professor Richard Lazarus has a framed copy of the 2007 Massachusetts v. EPA ruling signed by Justice John Paul Stevens. It is a symbol of the significance of the case for Lazarus, who has written the book “The Rule of Five: Making Climate Change History at the Supreme Court,” which tells the inside story of the landmark environmental case. The Gazette sat down with Lazarus, a Supreme Court advocate and the Howard and Katherine Aibel Professor of Law, before the coronavirus quarantine to talk about his book, his passion for environmental law, and the legal strategy behind the environmentalists’ victory.

Atlantic Richfield Co. might be off the hook for added cleanup liability at a Montana site after the Supreme Court on Monday partially resolved a high-stakes Superfund case in the oil company’s favor—but the door is still open for similar claims in other cases. All eyes are now on the Environmental Protection Agency and Montana courts, as they decide what happens next. At issue in the case is an effort by Montana landowners who wanted Atlantic Richfield to pay for additional cleanup work in their backyards. The justices’ 7-2 opinion says the landowners can’t pursue those claims without the EPA’s blessing...But the decision also sidesteps the company’s broader argument that federal Superfund law preempts the types of claims the landowners brought...It’s a mixed result, Harvard Law School professor Richard J. Lazarus said, because the decision “keeps alive the potential for suits under state law in state courts related to Superfund cleanups in future cases,” but with the “major catch” that challengers must first get the EPA’s approval.

Disregarding an emerging scientific link between dirty air and Covid-19 death rates, the Trump administration will decline to tighten a regulation on industrial soot emissions that came up for review ahead of the coronavirus pandemic. Andrew R. Wheeler, the head of the Environmental Protection Agency, is expected to say on Tuesday morning that his agency will not impose stricter controls on the tiny, lung-damaging industrial particles, known as PM 2.5, a regulatory action that has been in the works for months...Just last week, researchers at Harvard released the first nationwide study linking long-term exposure to PM 2.5 and Covid-19 death rates. The study found that a person living for decades in a county with high levels of fine particulate matter is 15 percent more likely to die from the coronavirus than someone in a region with one unit less of the fine particulate pollution. “The timing of this is unbelievable,” said Richard Lazarus, a professor of environmental law at Harvard. “There’s this big study that just came out linking this pollutant to Covid. This seems like a colossal mistake on the administration’s part.” ...Mr. Lazarus, the Harvard lawyer, said that he expected that E.P.A. would be legally required to incorporate the findings of the Harvard study into the rationale for the rule before it is made final, likely later this year. “It will eventually be part of the legal record,” he said. “Historically, Harvard’s public health studies have been central to E.P.A. public health rules.”

One Supreme Court decision sparked some of the most significant actions taken by the U.S. government to deal with climate change. Massachusetts vs. Environmental Protection Agency was decided in a 5 to 4 ruling in 2007. It laid the groundwork for many of former President Obama’s climate policies, including the Clean Power Plan. It all began in 1999 when a man named Joe Mendelson, an environmental lawyer who worked for a small public interest group, delivered a petition to the EPA urging them to regulate carbon dioxide as an air pollutant under the Clean Air Act, says Richard Lazarus, author of a new book about the case called, "The Rule of Five: Making Climate History at the Supreme Court."

As the Trump administration prepares to officially withdraw from the Paris Agreement later this year, one law professor is looking back at the Supreme Court case that opened the door for the United States to enter the global climate pact in the first place. In a book due to be released next week, Harvard Law School professor Richard Lazarus explores the 2007 Massachusetts v. EPA decision that said the federal government can regulate carbon dioxide and other greenhouse gas emissions as "air pollutants" under the Clean Air Act. ... Lazarus recently chatted with E&E News about the ripple effects of Massachusetts v. EPA, the lessons to be learned in the historic kids' climate case and his favorite foods in the Supreme Court cafeteria.

An article by Richard Lazarus: Reports emerged in January from inside the Trump administration that the president was preparing a new thrust in his Ahab-like quest to destroy every last fiber of the Obama administration’s programs to address the threat of climate change. Trump has his sights on one of President Barack Obama’s signature accomplishments—the slashing of greenhouse gas emissions by cars and trucks. Fortunately, there is good news in the bad news. Law and science still matter and the president’s legal and scientific work in repealing the Obama climate programs during the past three years have been so consistently shoddy that almost every one of his efforts to date is likely to be overturned by the courts. The president and his political appointees at the Environmental Protection Agency are making the same mistake over and over. They first decide what they want the answer to be, and then try to twist the law and the science to back that conclusion. The problem is that law and science don’t work that way. They are not so easily manipulable.

At the midpoint of the Supreme Court's current term, the justices have now heard arguments in some of the biggest environmental cases in years, but decisions in those disputes are still pending. By this summer, the justices will have decided a case that could more clearly establish the scope of the Clean Water Act and a challenge that could more firmly define states' role in federal Superfund cleanups. The court has so far been slow to issue opinions while Chief Justice John Roberts was spending half of his days at impeachment trial proceedings across the street on Capitol Hill. The most consequential environment and energy case that remains on the court's calendar this term is a dispute over the Atlantic Coast pipeline's crossing of the Appalachian Trail. The justices will decide whether the 4th U.S. Circuit Court of Appeals appropriately reached a decision in favor of conservation groups that the Forest Service did not have the power to authorize the natural gas project to pass beneath the trail. "It's going to press some of the justices on the textual question, and the environmentalists are pushing textualism front and center in this case," Harvard Law School professor Richard Lazarus said during a recent conference organized by the Environmental Law Institute and the American Law Institute. "It will be a fascinating case to watch," he said.

Last April, the head of the Environmental Protection Agency, Andrew Wheeler, proclaimed at an auto show here that he would soon roll back President Barack Obama’s stringent fuel efficiency standards. That, the administration contends, would unleash the muscle of the American auto industry. It would also virtually wipe away the government’s biggest effort to combat climate change. Nearly a year later, the rollback is nowhere near complete and may not be ready until this summer — if ever. “They look like they’re headed to a legal train wreck here,” said Richard Lazarus, a professor of environmental law at Harvard University...“If the costs to the economy exceed the benefits, and there are no environmental benefits, the courts would classically look at this as an arbitrary and capricious policy,” said Mr. Lazarus, who specializes in environmental law at Harvard. “That makes it very vulnerable to being overturned.”

Chief Justice John G. Roberts Jr. stood stiff and tight-lipped, no hint of a smile, as President Trump stopped to shake hands Tuesday evening in the House chamber, just prior to his State of the Union address. ... Harvard law professor Richard Lazarus, a Democrat and a friend of Roberts’ since law school, who sometimes teaches a class with him during the court’s summer break, said, “Perhaps not surprisingly, I think he did an excellent job under perilous conditions.” “Would I personally prefer to see Donald Trump convicted by the Senate? Yes,” Lazarus said. “But that was not the chief’s job. That was the Senate’s job. And the chief did his job well. The Senate did not.”

With an oath of impartiality, Chief Justice John G. Roberts Jr. on Thursday became only the third American sworn to preside over a presidential impeachment trial. How he fulfills that pledge will have obvious consequences for President Trump. But it also will shape the public image of the nation’s 17th chief justice, and it holds ramifications for the Supreme Court and federal judiciary he leads. He portrays both as places where partisan politics have no purchase. “And now he crosses First Street, where it’s all about partisan politics,” said Harvard law professor Richard Lazarus, referring to the roadway in Washington that separates the Supreme Court from Congress. There are obvious risks for Roberts, but Lazarus said he doesn’t believe the chief justice will be particularly “risk-averse.” “I don’t think he’s going to look like a potted plant,” said Lazarus, who has known Roberts since law school and has taught summer courses with him after he became chief justice. “He’s not going to erode the stature of the chief justice and the Supreme Court in the process by looking like an insignificant person.”

Unexpected dynamics in a Nov. 6 Supreme Court oral argument might add pressure for parties to settle a high-stakes water pollution case, but the mayor of the Hawaii county involved in the dispute says that’s not an option. Several of the court’s conservative-leaning justices asked questions during the argument that indicate they may not see the litigation through a strictly ideological lens. The case, County of Maui v. Hawai’i Wildlife Fund, asks whether Clean Water Act permits are required for pollution that passes through groundwater or another intermediary before reaching a federal waterway...Harvard Law School professor Richard J. Lazarus said “it’s no longer a sure thing” the court will side with the county, a dynamic that might pressure Maui’s mayor to revisit a settlement plan he previously rejected. Referring to the law firm representing the county, he said, “If I were counsel for [Hunton] Andrews Kurth right now, I’d at least owe my client a phone call.”