Richard Lazarus

...Though more eyes may be on Kavanaugh, Roberts may be the most important justice after the retirement of Kennedy, the court's swing vote. Kavanaugh is likely to align with the court's more conservative justices, making Roberts the most likely to join the court's four liberals on occasion. “He won’t be as liberal in some dimension as Kennedy, but he’ll be more of an incrementalist,” said Harvard Law School professor Richard Lazarus, a Roberts classmate there in the 1970s.

Richard Lazarus has advised hundreds of clerkship hopefuls during his seven years on the faculty at Harvard Law School, and the 15 years he spent at Georgetown University Law Center before that. Never once has he broached the subject of appearance with a student in regards to landing the job. That’s not entirely true. There was the time many years ago when he asked a female student, after the fact, whether she had removed her facial piercings for an interview with a federal appellate judge. “I recall she looked at me quizzically and exclaimed something like, ‘Of course! I wanted to get the clerkship!’” Lazarus said. “Which she in fact did secure and she has since enjoyed a wonderfully successful career, first at the U.S. Department of Justice and later as a tenured law professor.” Lazarus and others said that urging law students to look a certain way to appeal to a hiring judge—as prominent Yale Law School professor Amy Chua is said to have done with female students seeking clerkships with U.S. Supreme Court nominee Brett Kavanaugh—isn’t standard practice.

...To this day, Ginsburg's opinion in EPA v. EME Homer City Generation LP remains the only time the Supreme Court has reversed one of Kavanaugh's environmental rulings on the U.S. Court of Appeals for the District of Columbia Circuit. A George W. Bush appointee, Kavanaugh has been on the D.C. Circuit for a dozen years. The case provides a glimpse into the nominee's broader approach to environmental law and how that may translate on the Supreme Court bench. "It's a very significant case. It's a huge environmental regulation at stake," said Richard Lazarus, a professor at Harvard Law School who has argued in front of the Supreme Court more than a dozen times. "It shows you exactly the potential divide between Kennedy and Kavanaugh, and also between Roberts and Kavanaugh. "That's why it's the most significant data point for environmental law in thinking about Kavanaugh's nomination," he said.

...Now as federal appellate Judge Brett M. Kavanaugh seeks to replace the retiring Kennedy on the Supreme Court, Kavanaugh’s 12-year record of skepticism toward such agency actions puts the landmark decision and other environmental protections at risk. Environmentalists fear that if Kavanaugh joins the court, he would vote to block anti-pollution regulations for decades, long after President Trump has departed...“That will be a major issue of litigation with a huge impact,” said Harvard law professor Richard Lazarus. “I can’t say how Judge Kavanaugh would react, but I can say Justice Kennedy would have been skeptical of taking away the state’s power in this area.” He predicted Kennedy’s retirement could have a major impact in two other areas of environmental law: clean water and endangered species.

...But Harvard Law professor Richard Lazarus, whose quote about Kavanaugh being “an outstanding member of our teaching faculty” was included in the White House release, said Friday that many of the law professor comments fall short of actual endorsements. Lazarus said he deliberately took no position on whether the Senate should confirm Kavanaugh. “A look at the actual words of many of those academics stop well short of a formal endorsement of the nomination,” he said. “They instead heap deserved praise on Judge Kavanaugh for his outstanding contributions to our law schools, as a teacher in particular. The question of whether, in the current political climate, senators should vote for or against Judge Kavanaugh’s confirmation raises many additional considerations, which my quote does not go on to address.”

...Kavanaugh has insisted on upholding the expansion of regulatory authority only when there is clear evidence Congress intended to do so. "It is a perfectly legitimate neutral principle for interpreting federal statutory authority," said Richard Lazarus, a professor of environmental law at Harvard. "But as applied to EPA, it had led Kavanaugh repeatedly and consistently to rule against EPA."

...Kennedy famously determined the direction of the nine-member court—joining its four liberals on some cases, its four conservatives on others—but he shaped few parts of American law as completely as he shaped the environment. Since joining the court in 1988, Kennedy voted in the majority in every environmental case in front of the court except one, according to Richard Lazarus, a Harvard Law professor who has argued more than a dozen cases in front of the justices...“We probably have more of a record for Kavanaugh for environmental law than we do for anyone else in recent memory,” Lazarus told me. “Roberts came from the D.C. Circuit, Scalia came from the D.C. Circuit, Ginsburg did, Thomas did—but none of them had the same number of EPA cases that Kavanaugh’s had.”

...That may be why Harvard Law School professor Richard Lazarus, an environmental law specialist, said he has yet to see students recoil from law firms that do energy work the way many rejected firms handling tobacco clients several decades ago. “Energy work broadly defined, including representation of utilities and even major oil and natural gas companies, has not yet seemed to trigger that same reaction in students looking for private sector employment in the Big Law firms, which frequently have a very wide client base that include that industry among many others,” he said in an email.

...“It’s a neutral principle, although the effect isn’t always neutral,” Richard J. Lazarus, a law professor at Harvard, said. “Congress stopped making clean air laws after 1990, so the E.P.A. has to work with increasingly tenuous statutory language. In effect, his approach to environmental law would make it harder to address current problems so long as Congress remains out of the lawmaking business.”

An op-ed by Richard Lazarus. Justice Anthony Kennedy's announced retirement earlier today sent shock waves across the nation's capital and the nation itself. Justice Kennedy's impact on the Supreme Court during the past 30 years has been enormous. He has been at the center of the Court, often supplying the controlling vote in closely divided, high-profile cases. But he has not been a judicial minimalist. Whichever way he swings, Justice Kennedy swings for the fences.

...Ever since Rapanos, conservatives and liberals have debated whether Scalia or Kennedy had the controlling opinion. That's an important question when WOTUS-related challenges are heard in circuit and district courts, which have to follow the Supreme Court's precedent. While no lower court has found Scalia's opinion to be the only controlling opinion in the case (some have said only Kennedy is, and some have said a combination of both is OK), none of that matters before the Supreme Court. "They are not going to feel bound one way or another by what was said in Rapanos because there was no majority opinion," said Richard Lazarus, a professor at Harvard Law School who has argued Supreme Court cases in front of Kennedy.

Though he sided with conservatives on most issues, Supreme Court Justice Anthony Kennedy sometimes broke ranks when it came to the environment. Kennedy, who announced Wednesday he will step down in July, was the key swing vote on one of the most important climate policies the United States has enacted: the regulation of greenhouse gases. The 2007 Massachusetts v. Environmental Protection Agency decision forced the EPA to treat carbon dioxide as a pollutant. After a review of the science, the EPA issued an endangerment finding for greenhouse gases in 2009, which says carbon emissions are a threat to public health...But would a Supreme Court with another conservative justice on bench take a whack at Massachusetts v. EPA? It’s unlikely, according to Richard Lazarus, an environmental law professor at Harvard Law School who has argued cases before the Supreme Court. “I think on that question, the odds are very, very small,” he told me.

The retirement of Justice Anthony Kennedy, announced Wednesday in a letter hand-delivered to President Trump, could bring about sweeping changes to U.S. environmental law, endangering the federal government’s authority to fight climate change and care for the natural world. With Kennedy gone, a more conservative Supreme Court could overhaul key aspects of the Clean Air Act, the Clean Water Act, and the Endangered Species Act, legal scholars say. And any new justice selected by President Trump would likely seek to weaken the Environmental Protection Agency, curtail its ability to fight global warming, and weaken its protections over wetlands...The reason has to do with simple math. As on many other issues, Kennedy has functioned as the court’s swing vote on the environment, occasionally joining with the court’s four more liberal justices to preserve some aspect of green law. “He’s been on the court just over 30 years, and he’s been in the majority in every single environmental case but one. You don’t win without Kennedy,” said Richard Lazarus, a law professor at Harvard who has argued 14 cases in front of the Supreme Court.

The Environmental Protection Agency announced a new regulation Tuesday that would restrict the kinds of scientific studies the agency can use when it develops policies, a move critics say will permanently weaken the agency’s ability to protect public health...Richard J. Lazarus, a professor of environmental law at Harvard, said Mr. Pruitt would be “walking into a judicial minefield” if he told the E.P.A. to no longer consider certain studies during agency rule-making. That, Mr. Lazarus said, would be considered an arbitrary and capricious decision under the Administrative Procedure Act, which governs agency rule-making, and would “subject any agency regulation issued based on such a defective record to ready judicial invalidation.”

If EPA Administrator Scott Pruitt survives the onslaught of accusations of mismanagement and excessive spending with his job still safe, he has his biggest benefactors to thank...So, why is Pruitt still so valuable to Trump donors like Harold Hamm, the Oklahoma oilman who chaired Pruitt’s attorney general reelection campaign and called Trump last week? The answer doesn’t appear to be that Pruitt is a legal genius who has rapidly and effectively gutted regulations in a way that satisfies the courts. “They’re producing a lot of short, poorly crafted rulemakings that are not likely to hold up in court,” Richard Lazarus, a professor of environmental law at Harvard, told the New York Times...Former EPA attorney Joseph Goffman, Harvard Environmental Law’s executive director, has been tracking the dozens of air, water, and climate regulations Pruitt has taken aim at so far. And Goffman has a counterargument: Pruitt has undermined environmental protection in ways that are not so easy or straightforward to untangle with a lawsuit. “He certainly sent the signal that in any given instance his policy preference is achieving lower levels of pollution reduction and achieving pollution reduction on a slower schedule,” Goffman says.

As ethical questions threaten the Environmental Protection Agency administrator, Scott Pruitt, President Trump has defended him with a persuasive conservative argument: Mr. Pruitt is doing a great job at what he was hired to do, roll back regulations...The result, they say, is that the rollbacks, intended to fulfill one of the president’s central campaign pledges, may ultimately be undercut or reversed. “In their rush to get things done, they’re failing to dot their i’s and cross their t’s. And they’re starting to stumble over a lot of trip wires,” said Richard Lazarus, a professor of environmental law at Harvard. “They’re producing a lot of short, poorly crafted rulemakings that are not likely to hold up in court.”

A former solicitor for the U.S. Interior Department sought to set the record straight on public lands Wednesday, disputing Western activists’ views that U.S. government ownership amounts to an unfair land grab and reminding listeners that much of the land was the federal government’s from the beginning...The event, in Harvard’s Northwest Laboratory, was sponsored by the Harvard University Center for the Environment and introduced by its director, Daniel Schrag, the Sturgis Hooper Professor of Geology and professor of environmental science and engineering. It featured a discussion by environmental law expert Richard Lazarus, the Howard and Katherine Aibel Professor of Law, and Terry Tempest Williams, writer-in-residence at Harvard Divinity School...Lazarus also discussed the lawsuits by environmental activists that Trump’s actions have prompted. Each side has good arguments, he said, but none that are clear winners.

Justice Elena Kagan committed a breach of protocol midway through the U.S. Supreme Court’s Dec. 5 argument in a case involving a cake for a gay wedding. Seeing that a lawyer’s time was expiring but wanting to ask another question, Kagan said she was confident Chief Justice John Roberts would give the attorney a bit more time. Kagan then looked sheepishly toward Roberts. "Is that OK?" she asked. Roberts gave her a look of mock exasperation, and the courtroom burst into laughter. The fleeting moment showed the rapport between the two and offered a glimpse into the dynamics of a court that often splits 5-4 along ideological lines...What the four share is a willingness to muffle some disagreements for what they see as a greater good. Each wants to avoid the perception that the court is "just another political institution," like Congress or the White House, said Richard Lazarus, a Harvard Law School professor who focuses on the Supreme Court.