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Winter 2024: Environmental Health & Safety

Interview: Professor Richard Lazarus

Milo Charles Mason


  • Richard Lazarus, the Charles Stebbins Fairchild Professor of Environmental Law at Harvard Law School, teaches and writes about environmental law, natural resources law, constitutional law, the U.S. Supreme Court, and torts.
  • He formerly served as Assistant to the Solicitor General of the United States and as a trial attorney in the Environment and Natural Resources Division of the U.S. Department of Justice.
  • Professor Lazarus explains the challenge of climate law and policy and shares hope for future environmental law attorneys.
Interview: Professor Richard Lazarus
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Richard Lazarus is the Charles Stebbins Fairchild Professor of Environmental Law at Harvard Law School, where he teaches and writes about environmental law, natural resources law, constitutional law, the U.S. Supreme Court, and torts. He formerly served as Assistant to the Solicitor General of the United States and as a trial attorney in the Environment and Natural Resources Division of the U.S. Department of Justice. He attended Harvard Law School, where he was a classmate of the interviewer, Milo Mason.

NR&E: Professor Lazarus, thank you for this interview. What’s so difficult about environmental law? It’s basically an effort to slow down or stop the tragedy of the commons, and everybody should agree to that. And I think we did that back in the ’70s or so. Now why can’t we deal with it now and compromise?

Lazarus: I think at bottom the problem is that environmental law tends to be redistributional. In other words, the laws of nature spread out the causes and effects. So, you have activities in one place that affect activities and people in another place. You have activities at one time affecting people and activities at another time. So, environmental law tends to regulate some people and some activities for the benefit of other people and other activities over time and space. And whenever you have anything that is trying to impose costs on some for the benefit of others—good luck with that. As long as people understand that society as a whole, is better off, as long as they conflate time and space, it might be possible to achieve the consensus necessary for compromise and legislation. But climate change has proven to be the worst nightmare for compromise and lawmaking because of the enormous extent to which benefits and costs are perceived to be spread out over time and space.

Often politicians opposed to climate legislation are expert at taking advantage of the mismatch between costs and benefits. They opposed the 2015 Paris Climate Accord by saying “we should get rid of the Paris Treaty because I represent people in my state or district. I don’t represent people in Paris.” The environmental lawmaking logjam began in the early ’90s once politicians effectively exploited environmental law’s tendency to impose costs on some for the benefit of others by pitting the two seemingly conflicting constituencies against each other. Simply put, environmental restrictions frequently regulate the activities of the here and now for the benefit of the there and then. Because, moreover, the “here and now,” reflected in the business community regulated by environmental laws, naturally have more political influence than the “there and then,” national environmental legislation has largely been paralyzed since the 1990s.

Professor Richard Lazarus, Charles Stebbins Fairchild Professor of Environmental Law, Harvard Law School

Professor Richard Lazarus, Charles Stebbins Fairchild Professor of Environmental Law, Harvard Law School

NR&E: 40% of the people don’t want to pay more for gasoline or 80%, don’t want to pay more for carbon, and they can’t afford EVs or don’t want to. Granted, today there’s more recognition of a global commons and we’re seeing a huge diminishment and tragedy of that commons, if the greenhouse gases continue and the Earth becomes way more hot. Although, when I interviewed the president of Maryland’s environmental university, he said, “well, Milo, you’ll have two crops on Illinois farmland a year, so global warming will benefit some people but the overall damage is going to be amazing and devastating.”

Lazarus: Yes, and that’s actually another good example of why climate change is such a nightmare for lawmakers.

And there’s no question that in the long term, everyone’s a loser and possibly catastrophically. But, in the short term, some people are more losers than others, and a few people can actually think they’re going to be winners, and the losers, unfortunately, tend to have no political or economic power. It’s lawmaking’s worst nightmare, and you and me, and people see this train coming. We’ve been seeing it for decades, and we don’t seem to be able to stop it. I always joke that you can tell you are in an environmental law professor’s office because on the wall next to the desk is a dent because they’ve been banging their head against it for decades.

NR&E: When I interviewed Elliot Richardson, who was basically the architect of the Law of the Sea Convention, and asked him about climate change, he told me that we have the technology to measure every and all the emissions from each country and we ought to just do a global cap and trade and impose incentives and sanctions or try to figure out how to get all the nations together and figure out a solution just like they did for the Law of the Sea Treaty Convention. While there’s still some issues under the Law of the Sea, the compromises mostly work, and we have ocean and water boundaries that we never would have figured out otherwise and freedom of the seas. Is there anything coming along like that for climate change?

Lazarus: We have to hope so, but since 2010, there’s been no progress. As we know, some people think that moving away from fossil fuels is going to take away from America’s sovereignty and increase our utility rates for gas and electricity. There’s been no meaningful effort in climate change legislation authorization since 2009. Now, of course, the Inflation Reduction Act is basically the best we can do. It’s significant, but it’s spending money, and it’s not a cap-and-trade program, which most everyone knows is the most effective and efficient pathway to achieving significant greenhouse gas emissions reductions. The Inflation Reduction Act is no doubt very good law, but the only kind of legislation we can pass anymore is through certain appropriations and budgetary measure. And that’s because that kind of budget reconciliation bill is not subject to a Senate filibuster, which is otherwise fatal to any significant congressional legislation.

NR&E: In my interview with Gaylord Nelson, I asked him what environmental laws was he most in favor of, and he said that environmental laws aren’t going to do it; we’ve got to educate everybody. It’s when that child picks up a can of tuna and says, “Mom, it doesn’t say it’s dolphin safe.” I mean, that’s when the environment’s going to be better. But it may be too late.

Lazarus: Yes, we tend to be delusionally optimistic because how else can one live one’s life? There was the Environmental Education Act passed by Congress in the late ’80s, early ’90s based on that theory that if you could educate people they’ll see; it doesn’t seem to have affected them as they get older.

I think part of the problem is human nature and that is people tend to be myopic. I think people, by human nature, focus on the here and now, and they vote for people based on the here and now. Right now it’s the price of gas.

NR&E: You teach. Why?

Lazarus: I teach for a few reasons. Part of it is I grew up in Urbana, Illinois. All I knew were teachers. I didn’t know any lawyers growing up. That was the trade. My father taught physics. I’ve got a picture of him in my office right behind me, teaching physics. His students would say “Lazarus rose physics from the dead.” So, I was always far more interested in teaching than working in the business of law. And beyond that, I like seasons. In academics, it makes big difference what time of year it is. There is the unbelievable excitement in the fall. There is the joy and the celebration and a little bit of the sadness in saying goodbye in the spring. When I practiced law, it didn’t matter what time of year it was.

And finally, my students are just great. I think the most important thing I do right now is launch law students into their careers. There was a time when I thought my work itself was significant. Now I think probably the single most important thing I do is launch students. And like you, I’ve been around long enough in this area. I’m very well connected. So, I can help them get jobs. I have those connections in some administrations more than others.

But these young people are just terrific. I just had lunch with five of them; it’s energizing, especially in the fall when they come in as first years. They are so diverse. They don’t look anything like our classmates. They are much more diverse. But the basic ingredients are the same. They’re hardworking, smart, and ambitious. They’re nervous because they’re worried about their future.

They’re worried about jobs. They want to do public interest, but they also have loans, bigger than we had. So, it’s the same basic ingredients. And is just a joy to teach.

NR&E: I saw that you’re teaching a class on climate change law. There isn’t much case law. What do you teach?

Lazarus: It’s actually a different class than that, but I teach torts for fun. There’s nothing more fun than teaching a first semester class to first year law school students.

And torts is the common backdrop to environmental law. Just as property law is in the background for natural resources, the work of Interior, torts, is the common law backdrop to work of EPA. I also teach a survey of environmental law class, which is a really hard class because, as you know, the statutes are complicated, mind-numbing, dense, technical. Necessarily so. The ecosystem is highly complex and so too must be environmental law. The class you read about is a brand new class called Climate Lawyering, which is not climate law. It’s distinct from the Climate Law class, which we have, and focuses instead on the many kinds of law lawyers may practice to promote a transition to a more carbon-free economy.

NR&E: It’s the question of what law can you use to sue your neighbor for pollution?

Lazarus: Yes. The premise of the class is that if you care about decarbonizing the country and the economy and moving to a different kind of way using and producing electricity, we need lots of different kinds of lawyers. We don’t just need lawyers who are experts on the Clean Air Act to work for the Department of Justice, EDF, or EPA.

We need lawyers who know how to do corporate transactional work. We need lawyers who are patent experts. We need lawyers who are securities regulation experts. We need lawyers who work at FERC on energy. The relevant areas of law for climate lawyering are not limited to the Clean Air Act.

I have so many Harvard law students who care about these issues, but they’re not planning to be classic environmental lawyers. But they are going to be all those other kinds of lawyers. So, this is their chance to learn about how those areas of law that they are planning to go into actually can play a constructive role in addressing climate change.

When I first got to DOJ, like when you first got to Interior, I discovered that one of the most important classes I took in law school wasn’t environmental law; it was an administrative law class. If you care about environmental law, don’t just be an expert on FLPMA and the Clean Air Act. You have to be an expert on all those crosscutting issues.

NR&E: Yes, and now with the challenge to Chevron about deference to agency action, the fights are going to be even more across the board.

Lazarus: I always tell my students, the best environmental lawyers are the best lawyers. So, first, what you have to do is become an outstanding lawyer, and then worry secondarily about the environment. The other thing is a lot of my students are not going to become public interest lawyers or go into public service, and that’s their decision. I don’t criticize them at all for that very personal professional decision. for it at all. I teach them how they can actually play a really positive, constructive role in the private sector too.

NR&E: There’s opportunity to put your thumb on those green things and push them along. You went to DOJ right out law school. And then you spent a lot of time at the solicitor general’s office and presented quite a few cases in the Supreme Court. What are your top two or three most memorable moments of those years?

Lazarus: Well, certainly it’s my first oral argument. You can’t help but it be your first argument. I remember walking around the Supreme Court building the day before. This would have been October 1986. I was about to make my first argument, it was a Civil Rights case, 42 U.S.C. section 1988, about recovering attorney’s fees or not in certain settings.

I remember walking around the Court, incredulousness that I was about to argue inside the next day. And I remember the first question I was asked. It was by Justice Blackman. He looked at me, and he said, “Mr. Lazarus, what is the proceeding?” A very logical question because that was the language of 42 U.S.C. section 1988, “proceeding.”

And I remember while I gave him a perfectly wonderful straight answer, inside my head, I’m thinking, “Wow! That’s Justice Blackman! He’s asking me a question.” It was just this amazement about arguing before the Court. I thought it was incredibly cool. I wore a morning coat and all the rest, and every time I have argued since I thought it was humbling and cool and fun, while I was also nervous they might ask a question I didn’t expect. The first was probably my most memorable.

Probably my most gratifying case was an unusual case for me. It was a case involving six retired highway railway workers who were suffering from asbestosis from exposure to asbestos. It was a case we were expected to lose, and, in drafting the brief and preparing for the oral argument, I increasingly thought I had developed a theory for how we could win the case.

I don’t normally represent individual people; I tend to represent causes. When you represent individual people, as in the retired railway works case, you feel enormous pressure because these guys are in their ’70s and ’80s. If we lose and we get a new trial, they’re never going to get any money. And we won the case 5–4. If I can remember correctly, my winning majority was Ginsburg, who wrote it, joined by Souter, Stevens, Thomas, and Scalia. Our votes were from either end of the ideological spectrum, and none from the middle. That was an especially gratifying result. And I recall thinking that Ginsburg’s opinion gives us a little bit of a break too. I think she understood what the stakes were in the case. I’ve got the signed opinion from her in that case right here above my desk.

NR&E: Justice Stevens swore me into the Illinois bar and when I went up to the Supreme Court I was awe inspired too. Should polar bears have standing?

Lazarus: I don’t think we need them to have standing. I think we can get there through people who have standing. It’s probably not a battle I would fight with all the battles we have to fight.

NR&E: Professor, that was a trick question. Of course, polar bears should have standing. On ice floes. Otherwise, they have to live and hunt and raise their cubs treading water in the melted ice 24/7! That would be just awful and is already almost happening. But to change the subject somewhat: What’s new and hopeful in environmental law?

Lazarus: I think what’s new and hopeful is the fact that technology has dramatically improved on climate. We actually have a lot of technology already that we need to dramatically reduce our greenhouse gases.

We have a lot of private-sector companies that realize they can make a gazillion dollars by promoting this stuff, and we just have to basically help remove obstacles and help facilitate it, which the Inflation Reduction Act does. I think that’s hopeful. That’s in a sea of things that one could say are not hopeful. But I think the technological advances for solar and wind are so great that we could reduce dramatically our greenhouse gas emissions of coal and we can far better detect methane leaks than we could a few years ago. I think there’s a lot of hope if we can get the politics to not get in the way.

NR&E: What’s your advice for young attorneys?

Lazarus: My advice for those in environmental law is try not to be discouraged, and get engaged in the compelling problems before us. There are so many different ways that they can make a positive difference. That can be in the private, public, or nonprofit sector. It could also mean electoral politics. The only way we’re ultimately going to get the laws we need is to have a dramatic shift in our elected representatives. And I have far more students than before interested in running for office.

I think that makes me more hopeful. It’s not my cup of tea; I don’t have the wherewithal to do that. But I think at the end of the day, all the lawsuits we bring and everything we do is important; but it’s baby steps compared to the need for national, state, and local leaders who actually care about these issues.

NR&E: Thank you, Professor.