Richard Lazarus

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.”

When the Environmental Protection Agency administrator, Andrew Wheeler, accused California of allowing “piles of human feces” on city streets to contaminate sewer systems, leaders of the agency’s West Coast region hastily convened an all-hands meeting of the San Francisco staff. At that meeting, E.P.A. officials informed staff members that Mr. Wheeler’s torrent of allegations about the state’s water pollution were exaggerated, according to five current and former E.P.A. officials briefed on internal discussions... Critics of the Trump administration have accused E.P.A. officials in Washington of clamping down on environmental standards in California while averting their gaze from similar or worse situations elsewhere. “There’s no question here that the administration is targeting California, because, ironically, California has played an outsize role as an aggressive regulator of environmental pollution,” said Richard Lazarus, a professor of environmental law at Harvard University.

The late Chief Justice William Rehnquist was a busy man on Jan. 20, 1999. The impeachment trial of President Bill Clinton was in its second week, and Rehnquist had to stop presiding over an oral argument at the Supreme Court, cross the street, and preside over the Senate. One of the lawyers arguing before the high court that day was John Roberts. Once one of Rehnquist's law clerks at the high court, Roberts could be juggling the same two jobs as his former boss soon. ... Restraint might be difficult in the current political environment, however. Richard Lazarus, a Harvard Law School professor and Roberts' roommate when both were students there in the 1970s, says Senate Democrats and Republicans worked together to set rules for the Clinton trial. That may be harder this time around. “He knows that when he crosses First Street, he's going to be putting himself right in the middle of the workings of the political branch," Lazarus says. "He’s going to work hard to keep above the fray.”

The Supreme Court’s environmental docket is still in flux just days from the launch of its new term, which begins Oct. 7. ...Harvard Law School professor Richard J. Lazarus said the outcome of the case could have impacts in other contexts, including a set of cases from state and local governments seeking to hold energy companies responsible for the effects of climate change. Rhode Island, and several cities and counties in California, Colorado, Maryland, New York, and Washington state have made claims against fossil fuel companies under their respective state common law systems—not under federal law. If the Supreme Court reads the CERCLA savings clause narrowly and determines that the federal statute trumps the landowners’ state-law arguments, energy companies would have fresh ammunition to argue the Clean Air Act preempts state-level claims involving climate liability. “So we will pay a lot of attention to what the court says on the meaning of the provision here because that’s very much like the language of the Clean Air Act,” Lazarus said during a Sept. 26 Environmental Law Institute event previewing the Supreme Court’s term.

The Trump administration on Thursday announced the repeal of a major Obama-era clean water regulation that had placed limits on polluting chemicals that could be used near streams, wetlands and other bodies of water. The rollback of the 2015 measure, known as the Waters of the United States rule, adds to a lengthy list of environmental rules that the administration has worked to weaken or undo over the past two and a half years. ...  Under the provisions of the Clean Water Act, legal challenges must be heard in Federal District Court, which is based at the state level, rather than federal appeals court. Richard J. Lazarus, a professor of environmental law at Harvard Law School, said that meant that opponents of the Trump administration would focus their challenges in states they perceived as friendly. “It’s going to be chaos,” Mr. Lazarus said. “We’re going to see suits brought all over the country.”

Republicans are trying to weaken a federal board that helps minority and low-income communities challenge how much pollution can be released in their neighborhoods by power plants and factories. ... “This is outrageous,” said Richard Lazarus, an environmental law professor at Harvard. “Individuals in communities will lose a way to seek relief from pollution that has historically been very effective. But industry will still be able to seek relief to pollute more.”

The Supreme Court has another big environmental case on its docket, as the justices today agreed to review a Superfund fight that could affect cleanup efforts across the country. The court will hear Atlantic Richfield v. Christian, a battle over an old copper processing site in Montana. At issue in the case is whether landowners can go to state court to seek money for restoration when EPA is already overseeing an effort under the Superfund law, officially known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)...Harvard Law School professor Richard Lazarus said he was surprised by the Supreme Court's decision to take the case against the administration's recommendation. "That the U.S. Supreme Court nonetheless granted review is not good news for the respondents and strongly suggests that the minimum of four Justices who favored review are currently inclined to rule in favor of Atlantic Richfield," he said in an email to E&E News.