This year, seasoned Supreme Court advocate and Georgetown Law School Professor Richard Lazarus ’79 has been a visiting professor at Harvard Law School. HLS students had the opportunity to get an in depth understanding of Supreme Court litigation from Lazarus, who has represented clients before the Court in over 40 environmental law cases and has offered an oral argument in 13 of those cases.
On April 1, the Court issued a ruling in one of Lazarus’s most recent cases: Entergy v. Riverkeeper. Here, he discusses that case, as well as trends in environmental law more broadly.
The Court has heard a large number of environmental law cases this past term. What do you think accounts for this dramatic increase?
It is certainly true that the Court’s environmental docket seems to be increasing at the very time that the Court’s overall caseload has reached historic lows in terms of the numbers of cases being decided on the merits. There are a couple of likely reasons for the result.
The first is that the absence of needed federal environmental legislation over the past two decades has prompted federal agencies, whether Democratic or Republican, to seek to achieve their desired ends in the absence of clear statutory authority, and therefore, through regulatory action that teeters on the border of legality.
The second is that business interests in recent years have increasingly turned to expert Supreme Court advocates to press their cases to the Justices both at the certiorari stage and on the merits. These advocates are exceptionally effective before the Court, and a number of the cases that the Court has agreed to review in recent years are cases that, without such advocacy, the Court would have never agreed to hear.
What are some of the “hot topics” with respect to environmental law that you think the Court might address in upcoming cases?
The Court this term has already addressed significant issues concerning the Article III standing of environmentalists in federal court. Before adjourning in June, the Court will hand down significant rulings concerning the role of cost-benefit analysis in establishing environmental regulations and the scope of business liability for hazardous waste contamination under the federal Superfund law.
I expect the Court will continue to visit the “standing” issue during the next few years because the Justices remain so sharply divided on the topic. Also, the jurisdictional scope of federal constitutional and statutory authority to regulate discharges of pollutants into navigable waters of the United States and to protect endangered species. There is considerable confusion within the lower courts on these issues, which will likely prompt Supreme Court review in the near future.
No doubt, however, the hottest environmental law topic today remains global warming, and the Court’s docket in the next ten years will reflect the many difficult legal issues arising from expected federal and state legislative measures designed to address climate change.
Can you identify any new trends in the Court’s recent rulings on environmental law issues? Have you been surprised by any decisions in particular?
There are two clear trends in the Court’s rulings. The first is that the Court almost never grants review at the request of environmental groups complaining that a lower court erred by failing to apply an environmental protection law stringently enough. Instead, when review is granted, it is almost always because a business is complaining that a lower court mistakenly applied an environmental protection law too stringently. The Court’s jurisdictional grants are strikingly skewed in this respect, much more so than in any other area of law.
For this same reason, however, the Court’s 2007 ruling in Massachusetts v. EPA is all the more remarkable. The Court granted review at the request of States and environmentalists, challenging EPA’s failure to regulate greenhouse gas emissions from new motor vehicles under the federal Clean Air Act. Justice Stevens authored a sweeping opinion for the Court on the merits against EPA in all respects that was reminiscent of the kind of pro-environmental ruling not seen since the 1970s. Nor were the legal issues presented in that case easy – in at least one, if not two of the questions presented, there were strong arguments on both sides, which made the environmentalists’ win all the more significant.
You were involved in the argument of one case this past term – Entergy v. Riverkeeper. Why did you get involved in that case?
I became involved in the Entergy v. Riverkeeper case the day that the Court granted the industry petition in that case. The environmental respondents (Riverkeeper) called me to ask if I would serve as their counsel of record in the case, drafting the brief and presenting the oral argument.
I immediately agreed to handle the case because it had all the right ingredients. First, the clients were fabulous – sixteen environmental organizations that had dedicated years to the legal question and that had obtained a major ruling in the Second Circuit in their favor.
Second, the case presented a significant challenge because it seemed likely that the Court granted review with the expectation that it would be reversing the Second Circuit, and I was attracted by the difficulty of trying to persuade the Justices to change their mind. In recent years, I have accomplished that in several cases, and it is exceedingly gratifying.
Finally, I was also interested in arguing the case because the briefing schedule would be over the summer, and therefore, not interfere with my teaching. As an added plus, I was confident that I could effectively fold the case into the advanced environmental law class I would be teaching at HLS in the fall.
The Supreme Court recently ruled against your clients in the Entergy case. What do you make of the Court’s ruling? Is it consistent with the other environmental law trends you mentioned?
The Court’s ruling was a disappointment to us, but not entirely unexpected. It seemed likely, once the Court granted review last spring, that it was likely to reverse the Second Circuit. Certainly, the ruling is consistent with the overall trends otherwise occurring in environmental law, including in the Court. At the same time, the Court’s reasoning is persistently narrow, probably in order to keep all five Justices signing on to the majority opinion. As a result, it provides EPA with much discretion on remand to adopt a new policy much more favorable to environmental protection concerns. I know my environmental clients are hopeful that EPA, with its new leadership, will do just that.
Lazarus is The Austin Wakeman Scott Visiting Professor of Law at HLS this year. Currently a Professor of Law at Georgetown Law School, where he directs the Georgetown University Supreme Court Institute, Lazarus previously worked for the U.S. Justice Department in both the Environmental and Natural Resources Division and in the Solicitor General’s office, where he was assistant to the Solicitor General from 1986-89.