During the spring semester 2024, Professor Robert Percival, environmental law program director, is teaching a new seminar focusing on how the U.S. Supreme Court has shaped the evolution of environmental law. With Congress in prolonged gridlock, the federal judiciary has become the most important agent of change in the environmental law field.
In the opening class session on January 9, students heard a guest lecture from John Cruden, former head of the Justice Department’s Environment and Natural Resources section. Cruden described the process the government undertakes when it considers whether or not to seek Supreme Court review of decisions by lower courts.
On January 16, students in the seminar made a field trip to the Court to watch oral argument in Devillier v. Texas, a takings case. Following the argument they joined Professor Percival for lunch at his home, which is located a short walk away from the Court.
On February 13 the students heard a guest lecture by Harvard law professor Richard Lazarus who described how he conducted the research that led to publication of his spectacular book “The Rule of Five.” The book described the amazing story behind the Court’s 2007 decision in Massachusetts v. EPA which upheld EPA’s authority to regulate greenhouse gases as air pollutants under the Clean Air Act.
On February 20 the students visited the Manuscript Division of the Library of Congress to examine the recently released papers of the late Justice John Paul Stevens. Each student has been assigned to write a memo describing what the papers reveal about an environmental case decided by the Court during Stevens’s tenure on the bench.
Professor Percival, who clerked for Justice Byron White, is a leading expert on the Supreme Court and environmental law. He previously authored articles analyzing what the papers of the late Justices Thurgood Marshall and Harry Blackmun reveal about the Court’s handling of environmental cases.
Percival has just authored an article entitled “The Capture of the Court,” which is the cover story for the March/April 2024 issue of The Environmental Forum. The article notes that Justice White once described being a Justice as “the loneliest job in Washington” because he did not think it proper to socialize with lawyers who might eventually have cases before the Court. The article traces how a lavishly funded campaign led by Federalist Society leader Leonard Leo has courted conservative Justices with luxury vacations that initially were not disclosed publicly.