Legal guru dubs enviro cases ‘dogs of the docket’

Source: Robin Bravender, E&E reporter • Posted: Monday, November 2, 2015

CHICAGO — Supreme Court justices dread taking on the complex cases that make environmental attorneys swoon, a well-known expert who has argued environmental issues before the high court said.

Harvard Law School’s Richard Lazarus told a conference of environmental lawyers, “We share something in common, which the justices don’t share. We like the Clean Air Act; we like the Clean Water Act; we like RCRA; we like CERCLA. It makes our hearts go pitter-patter.”

But for the Supreme Court justices, he added, “These are the dogs of the docket.”

He backed up his statements with comments made by former justices and clerks in papers now on file at the Library of Congress.

In a 1987 Clean Water Act case, Gwaltney v. Chesapeake Bay Foundation, then-Justice Harry Blackmun scribbled in his notes during oral argument, “I am getting sleepy,” according to a copy of the document displayed by Lazarus.

Lazarus again referenced Blackmun’s notes from a 1994 environmental case involving how household waste is incinerated. Lazarus argued before the justices in the 1994 Chicago v. Environmental Defense Fund, which he called “an exciting, wonderful case.”

Blackmun wrote the ages and law schools of the attorneys arguing before him. Under Lazarus’ name, he wrote that he was 39 and had attended Harvard Law. He also wrote, “all very dull.”

The court’s disdain for environmental cases makes it even tougher for lawyers to get them heard by justices who receive about 8,500 petitions each year asking them to take on cases, Lazarus said at the conference here hosted by the American Bar Association.

For environmental petitioners challenging the government without the support of states, the prospects of winning Supreme Court review are particularly dire, he added.

The court didn’t agree to hear such a case for 35 years between 1971 and 2006, Lazarus said. “That’s a long time.

“In short, if you’re trying to get Supreme Court review, good luck,” he said. “The justices, they don’t like our stuff.”