‘Common Law’ S2 E11: ‘Carbon Dioxide Warriors’ at the Supreme Court

and welcome back to Common Law, a podcast
from the University of Virginia School of Law. I’m Risa Golubuff, the dean. LESLIE KENDRICK: And I’m
Leslie Kendrick, the vice dean. RISA GOLUBOFF: It’s
hard to believe this is the last episode
of the season, Leslie. It feels like no time has
passed since we kicked off this season on “When
law changed world,” talking about the rise of
the anti-smoking movement with Sarah Milov. But it also feels like
years have happened outside of the show
in our real world, from a presidential impeachment,
to a worldwide pandemic. LESLIE KENDRICK: It’s so true. It really highlights how
your life can change just in an instant and that we’re
making history and shaping law everyday. Even though much
of our attention is now on the pandemic,
there’s another looming problem facing the world that could
similarly alter our lives– climate change. RISA GOLUBOFF: And
our guest today will help us understand a
pivotal moment in the fight to mitigate climate change. Harvard law professor
Richard Lazarus has written a book
about the Supreme Court case, Massachusetts versus
the Environmental Protection Agency. The book is called, The Rule
of Five, Making Climate History at the Supreme Court. Welcome to the show, Richard. RICHARD LAZARUS:
Delighted to be here. LESLIE KENDRICK:
Richard, you’ve argued 14 cases before the United
States Supreme Court yourself. Why did you choose this case
to focus on for your book? RICHARD LAZARUS: This
was the most significant environmental decision ever
handed down by the United States Supreme Court. It was immediately hailed
as environmental law as Brown V Board of Education. And no case is as significant
as Brown v Board of Education, but it led to the first
international Climate Accord the Paris Agreement
in 2015, a historic moment for the world. And the Paris
Agreement would not have happened without
Massachusetts versus the EPA. So I had a sense
at the beginning I knew the arc of my story. And then I learned a lot
more as I did the research. And then, of course, some things
changed after 2015 as well. LESLIE KENDRICK: So take us
back to the very beginning. How did the case get started? RICHARD LAZARUS: Well,
the case started really with a guy named Joe,
and that’s Joe Mendelson. Joe Mendelson worked for a group
that no one has ever heard of, called the Center for Technology
Assessment, a public interest organization Washington DC. It’s the late 1990s. It’s 1998. So a good decade before
the Supreme Court to decide the case. And Joe worked for this group,
and Joe was just fed up. He’d gone to GW Law School– George Washington Law School. He was a second generation
environmental lawyer, interested in issues
like climate change. And he got fed up as he watched
the Clinton administration year after year after year not do
anything on climate change. They had a lot of
really important stuff during the Clinton
administration on environmental issues,
but not on climate, which is particularly
frustrating for environmentalists like
Joe, because Al Gore was vice president of the United States. He had written the book in 1992
called Earth in the Balance on how climate change was
the biggest threat facing humankind, an
existential threat, threatening sort of enormous,
potentially catastrophic consequences on the planet. Yet the Clinton
administration just wouldn’t actually regulate
greenhouse gas emissions during eight years. So by the end of the
1990s, Joe’s fed up. He works on a petition to
challenge the Clinton EPA. He works on it late at night
by his baby daughter’s crib, and he’s under enormous
pressure not to do it. All the big environmental groups
in the country were saying, don’t do it. Don’t challenge the
Clinton administration. This is a big mistake. LESLIE KENDRICK:
What was it that he was going to ask them to do? RICHARD LAZARUS:
He decided that he was going to file a
petition with the EPA to require them to
regulate greenhouse gas emissions from new motor
vehicles in the United States. And he looked at the Clean
Air Act, the statute which had been in existence in 1970. And he said, it’s
quite clear to me, you have a mandatory
obligation here, EPA. What the statute
provides in Section 202– the Clean Air Act provides
if the administrative EPA– that’s the person who runs
the Environmental Protection Agency– determines that emissions of
any air pollutant from motor vehicles may reasonably endanger
public health and welfare, the administrator has to
regulate those emissions from motor vehicles. And Joe looked at that statue
and said, well, this is easy. Greenhouse gases, they’re
clearly air pollutants. So the question is
whether they reasonably determined to endanger
public health and welfare. Well, that too was easy. By 1998, the science was– there
was consensus across the United States, across the globe. So Joe just couldn’t
wait any longer. In 1998, he drafted a petition,
under enormous pressure not to do it. And in 1999, he’s
finally decided he’s going to rock the boat. He walked the petition
down to the EPA. He filed it by hand with
the Environmental Protection Agency, and he sent a copy
of it to Vice President Gore at the White
House for good measure. LESLIE KENDRICK: So what did
the Clinton administration do with it when they got it? RICHARD LAZARUS: They
did nothing with it. They sat on it, because
it wasn’t actually clear that there was any
particular right to file the petition or any
obligation on the part of EPA at all to actually
respond to it. So the Clinton administration
did nothing with it, except one thing. To their great shock
and the shock of many, they lost the presidential
election in 2000. George Bush was
the new president. So at the very end of the
Clinton administration, they decide to file a
notice about the receipt of that petition to
trigger within the agency some obligation to sort of
think about it and consider it. What one departing Clinton
administration official described as, “leaving
a turd on the doorstep of the next administration.” That’s how they
viewed Joe’s petition. LESLIE KENDRICK:
So this was just– they were making some work for
the incoming administration. RICHARD LAZARUS: Right. RISA GOLUBOFF: That’s great. So they leave the turd, and
does the Bush administration do with it once
they get in office? RICHARD LAZARUS: Well,
it’s interesting, and this is part of the story
we think most people would not have had any idea about. And that is the Bush
administration comes in, there is every reason
to believe they were going to aggressively
regulate greenhouse gas emissions. During the 2000 election
between Al Gore and George Bush, only one candidate made a pledge
to regulate greenhouse gas emissions, and that wasn’t
Al Gore, it was George Bush. On September 29,
2000, he made a pledge to regulate greenhouse
gas emissions. About 2 and 1/2 weeks later– actually, four or five
weeks later, everything changed because all of them
were outmaneuvered by one person and that was Vice
President Dick Cheney. He had flipped the
administration. Bush reneged on
his campaign pledge with a letter to
Congress, and that letter included an important statement. He said, not only am I not
going to regulate greenhouse gas emissions, I also don’t
have authority to do it. The Clean Air Act does not
authorize the regulation of greenhouse gas emissions. They are not air pollutants
under the Clean Air Act. So he not only answered
a policy question, he answered a question of law. LESLIE KENDRICK: And
that was the shift on that legal question. RICHARD LAZARUS: Absolutely. It was a shift because
EPA had taken the position that greenhouse gases
were air pollutants. They had done that during
the Clinton administration. They had never actually
regulated them, but they did taken the
position saying that greenhouse gases were air pollutants. RISA GOLUBOFF: All right. So eventually, EPA denies
Joe Mandelson’s petition? Is that what happens next? RICHARD LAZARUS: Yeah. Basically, once the president
of the United States has said that greenhouse
gases are not air pollutants, the decision has been made. It’s been made for EPA. So at that point, the
EPA had no choice. The only choice was
to deny the partition. So once a petition
is denied, then they can challenge that
decision in court. They now have a final
decision by the agency, and they can bring a challenge
to the administrative procedure act. It’s not all clear
EPA ever had to have acted on the petition at all. But once they acted
on the petition, then they could bring a
lawsuit in court. By the time the
lawsuit is brought, which is now in
the fall of 2003– so we’re now five years from
when he drafted the petition, four years from when he
walked it down at the EPA, at that point, Joe Mendelson
is no longer alone. He’s got a dozen states
on his side, about two or three dozen national
environmental groups on his side. They call themselves “The
Carbon Dioxide Warriors,” as they’re challenging EPA. So he’s part of a huge team
that is bringing this case. And the case is brought in the
first instance in the United States Court of Appeals to the
District of Columbia circuit. Now, as most people
realize, usually you start cases in trial court– here being in
federal trial court. But under the Clean
Air Act, this decision was made by EPA under
the Clean Air Act. This kind of decision goes
to the US court of Appeals for the DC circuit
in a first sentence. So it goes straight to
the Court of Appeals. Doesn’t have to do trial first. And the DC circuit has exclusive
jurisdiction over these issues. No other federal court
of appeals can hear it. So this case is brought in from
the DC circuit, which is often referred to as the second most
important court in the United States after the Supreme Court. Well, the Court nominally
decided the EPA wins. The vote is 2 to 1 to dismiss
the Mendelson petition. LESLIE KENDRICK: So the
carbon dioxide lawyers lose at the DC circuit. And in the normal
course of things, for this case to get
to the Supreme Court, they would have to petition
the Supreme Court to grant review and hear the case. But as you talk
about in your book, there was some question among
the environmentalists about whether rolling the dice
with the Supreme Court was such a good idea. RICHARD LAZARUS: So the
biggest fight first happened on whether go for
rehearing on bond, let alone any further review. And everyone, including
Joe Mendelson, who was a fighter, everyone
said, fold our tents. One person thought that
they should keep going, a guy named Jim Milkey. Jim Milkey was a career attorney
with the Massachusetts attorney general’s office. He headed their environmental
Division of that office. And Milkey felt
strong about the case. He didn’t think they should
acquiesce in this loss. But it took a lot
of courage by Milkey to convince the Court to
take this case was Herculean an effort in any context, since
that there was no lower court decision, let alone a
circuit conflict of any kind. And you add to that
the historic fact that the environmental groups
never succeed in getting cert granted. So there was not a
snowball’s chance in hell that this case ever
would ever get granted. Even then they fought over it. And the amazing thing
is it was granted. RISA GOLUBOFF: So how did the
snowball have a chance in hell? What made the Court take it? How did they persuade them? RICHARD LAZARUS: I think
there are a few things. One is David Tatel’s dissent. I think David Tatel’s dissent
played a significant role. Tatel is highly regarded
by the justices. So I think to some extent, his
dissent was a cert petition. So that’s one thing
that played a role. The other thing
that played a role is the cert position filed by
the carbon dioxide warriors. Jim Milkey did the
first draft, and he managed to for the first
time achieve consensus among the Carbon
Dioxide Warriors. Everyone agreed that his
petition was terrible. It was awful. And even he realized when
he read all their criticism how bad it was. So Jim Milkey was about
3 and 1/2 weeks left before the petition was
due did a terrific thing. He brought in a ringer. He brought in a law professor
from Georgetown University, Lisa Heinzerling, and
asked Lisa Heinzerling if she would draft
a cert petition. Lisa Heinzerling
had formerly worked for the Massachusetts
attorney general’s office, so she was known to them. She was a brilliant young
scholar, terrific teacher. She had clerked for Justice
Brennan on the United States Supreme Court. She’s a great writer,
engaging, fun. In very short order, Lisa wrote
a very engaging cert petition. She understood how to try to
get their attention to the case. She made the case about ad law. She didn’t make the
case about climate. I mean, those of us who are in
peak environmental law, our hearts may go
pitter patter when we think about climate change. The justices’ hearts
don’t go pitter patter for climate change. They go pitter patter
for administrative law. These are the kinds
of issues they care and they think about it. So she pitched a case, an
administrative law case. She made the first
issue of the case, which is not at all logical,
about whether or not EPA had abused its
discretion in deciding not to decide the issue. She made the second
question whether or not greenhouse gas air pollutants. That’s the issue
they cared about, but she had a hard time
making it the first issue since no judge in the
majority would had even addressed the issue. So it made it into
this big deal. Who knows what actually
made the difference, but it was a shocking moment. And when the Court– I think was June 26, if I
remember correctly, 2006, they granted cert in that case. The petitioners, Carbon Dioxide
Warriors, they were stunned. None of them thought this
case would be granted. Everyone was basically
saying the same thing– holy shit or the like. They couldn’t believe
they had a case. And so Milkey
recalled to me later how when he saw the cert
granted, he actually thought, what have I done? Because he knows it takes
four votes to grant cert. It takes five votes to win. And he realized at that point,
if they took this case up and now it was up, they had the
biggest environmental case ever and they lost, it
would be a disaster, particularly if they lost
in Article 3 standing. Because that it could shut
down climate litigation in all the federal
courts forever. LESLIE KENDRICK: So the
case ends up being decided, I believe, in the
spring of 2007. And this is the Roberts
Court, and they’ve got questions both about
standing for the states and for the various
other petitioners and then the substantive
questions about EPA’s authority under the Clean Air Act. And the outcome is
fairly surprising. What’s the decision? RICHARD LAZARUS: Well,
the outcome is surprising. The opinion is
written by John Paul Stevens, who I refer to as
the Jedi master of the Supreme Court. He writes the opinion
for the Court. It comes out April 2, 2007. An important thing
to remember, though, is that there is nothing
preordained, as you suggest, about this happening. As you may know, the arguments
of November 29, the justices are being conferenced in
private on December 1. So two days later, Friday
morning, that’s when they vote. And the tentative
vote was 5 to 4, and Justice John Paul Stevens
was the senior justice in the majority. That doesn’t mean
he’s going to write the opinion for the Court. That means he gets
to decide who’s going to write the
opinion for the Court. And as Justice
Stevens has explained, that is a big decision. Because if it’s 5
to 4, he has to make sure the person who writes
the opinion for the Court can keep those five. Because the votes at
conference are just tentative. They’re not at all permanent,
and people change their mind all the time. So Stevens is sitting
there on December 1 trying to think, who do I
want to write this opinion? And he knows Justice Kennedy–
he can’t afford to lose a vote. He knows Justice Kennedy changes
his mind on votes, so Stevens sits there and goes, do
I assign it to myself, or do I assign to
Justice Kennedy? If I assign it to
Justice Kennedy, the odds are we’ll
keep the five. He’ll institutionally feel
committed to write an opinion in a way he can sign it. And this is an ownership
you have of things once you start them. It’s hard to leave. You can, but it’s harder. Or do I assign it to
myself and take the risk? Stevens decided to
assign it to himself. So it took him eight drafts. It took him eight drafts
to get his five votes. Draft number one, he had four. Draft number two, he had four. On the eighth draft, he
finally made enough compromise and qualifications to
get Kennedy to join him. He still kept his very sweeping
beginning, very strong opening statement. He made it about climate change. But on April 2, 2007,
the opinion comes out. No one was expecting
the opinion then. The case was argued in November. You know when cases are
generally going to come out. This was clearly going
to be a 5-4 close one. Everyone assumed this is a
May or late June decision, so no one was paying
attention when the Court walked
out on April 2, 2007 and announced its
opinions that day. None of the Carbon
Dioxide Warriors were paying any
attention to the Court. They didn’t even know the Court
was coming out at that point. So everyone was stunned
when it came out it and stunned with the result. RISA GOLUBOFF: So you’ve already
said how huge a case this was for environmental law
and for climate change and making it akin to Brown
Versus Board of Education. Are there lessons that
you think this case offers outside of that, of it
being a capstone case? What other kinds of
lessons do you take? RICHARD LAZARUS: Well,
one is, what a difference good lawyering can make. There was really good
lawyering done in the Supreme Court in this case. And this case could
not have been done without really good lawyering. Knowing how to frame a case,
knowing how to pitch it, knowing how to acknowledge
your weaknesses in a case, which they did
very well, particularly the oral argument. Not to sort of argue something
as strong when it’s not strong when you lose credibility. Had to narrow their
ask and make it a small ask to possibly
try to win the case and then celebrate big later. The difference that good
lawyering could make. And this case, by winning
it, by establishing greenhouse gases
were air pollutants, every single thing the
Obama administration did was based on Massachusetts
versus the EPA. All of the greenhouse gas
emissions and all that was necessary for Paris. So the first lesson I
would say is the difference good lawyering could make. And this case, among others,
I think underscores something I’ve always told my
students interested in environmental law, which is,
the best environmental lawyers are the best lawyers. You can be environmentalist,
that’s great. But, you have to be
an excellent lawyer first and not just an
excellent environmental lawyer. The second lesson I would
say is what a difference one person can make. In this case, along the line,
there is at different times, there were individuals who
were extremely courageous and it made a difference. A third lesson I would
take away from the case is, don’t assume history. There’s a reason why my book
is called Making Climate History in the Supreme Court. One of my unfavorite
arguments of all time, which I hear people say, those of my
generation, younger generation, is if they don’t like the
position of someone else, they say, you’re on the
wrong side of history. I hate that argument
because it assumes history. It assumes history will be
what you think it should be. You don’t assume history. You fight for history. You make history. In this case, they made
history, but they made it by fighting for it, by being
smart and by being strategic, by being nimble, knowing
when to ask small and knowing when to ask big. And the I think the last
lesson I would take away is even a case as monumentally
important as Massachusetts versus the EPA, it’s still
just a Supreme Court decision. And Supreme Court
decisions themselves, the votes of five
justices is never enough for truly long-lasting
transformative change. Brown v Board of Education
did not end racism in the United States. It did not end segregation
in our schools. It’s taken– it’s still fighting
for that across this country. It took legislation afterwards. It took changes of attitude. Incredibly important
cases, but it takes more than just
five votes of justices. And the same is true for
Massachusetts versus the EPA. Incredibly important
decision, but it’s a decision of the Supreme Court. You want transformative
change, long-lasting change in the United States, that’s
done through the ballot box. It’s not done through
five votes of justices. It’s done by individual votes
of people across the country. That’s how you change history. That’s how you have
long-lasting change. And the climate
change issue is one which requires
long-lasting, enduring laws. You can’t just
solve it one night. You’ve got to maintain the
laws, maintain the emissions reductions over time. So really, the longer
term lesson of this is incredibly
important decision. But if Massachusetts
versus the EPA is promised. The promise of that
ruling has to be realized, not unlike the promise of
Brown v Board of Education is who the
votes of individuals, courageous individuals, people
not just willing the lawyer, but people willing to vote. And we have a very
important election coming up on many issues,
but certainly including on the climate change issue. LESLIE KENDRICK: This has been
such a great conversation, Richard. Thank you so much. RICHARD LAZARUS:
Well, thank you. I enjoyed it a lot. RISA GOLUBOFF: Thanks, Richard. [MUSIC PLAYING] LESLIE KENDRICK: So
where Richard ended, Risa, makes me think
a lot about your work, that cases don’t get
decided in a vacuum and that legal history
and history is made by lots of different actors. RISA GOLUBOFF: Yeah. I was thinking the
same thing, Leslie. Funny you should mention that. The book is so fabulous
in that it’s really telling this story
of what happens to a case from
the very beginning and before it’s even a case,
all the way through the court and then afterward. And I think a lot of
a time when people think about what is a
case or what is law, they start and end with the
Supreme Court and its decision. But I write a lot
in my legal history about how a court doesn’t even
take a case until a plaintiff has come forward, until
a lawyer has decided there is a legal issue here. And so one of the things
he does so beautifully is show both within
litigation itself how many different actors
play a part in changing the world through the law
in identifying that there’s a harm, in classifying that
harm as a legal categorical way. And even in what
facts they think are important so that
litigation neither starts nor ends at the core. And on the backside,
which he says so well is, the Court isn’t the
end of the story. They’re a punctuating moment. They intervene into
this larger milieu. And they obviously set terms,
and they set baselines, and they give power to one
side or the other coming out of the case. But then everybody
regroups, and they start from the new
baseline thinking, what is it that we can do? How do we change the world to
look like we want it to look? And that’s different for
many different actors. And then beyond that is
outside of litigation is policy and politics and all
of these other organizations that are all operating not
only in the litigation context, but in all those
other arenas as well. LESLIE KENDRICK: It made me
think about some of the stories we’ve heard in some other cases. So when he talks about
Joe Mendelson deciding to walk this complaint over,
it makes me think about some of the individual actors that
Sarah Milov talked about who kicked off the anti-smoking
movement, some of which were involved with
litigation, but others were involved in other
types of political action. Or the council in New York
Times versus Sullivan. It was the New York
Times’ local Alabama counsel that thought they should
make the constitutional claim, and none of the fancy New York
lawyers thought to make that. It’s all of these
ways that folks who are not the Supreme
Court justices and they’re not the Supreme
Court litigators, they can have an enormous impact
on the way the law ends up getting shaped. And we’ve heard so many
stories about that this season. It’s been really interesting. RISA GOLUBOFF: Absolutely. And I think it’s one of my
favorite themes as a scholar, and I know it’s one
of our favorite themes as legal educators, which
is, the power of lawyers. And I think people think, oh,
Thurgood Marshall or Ruth Bader Ginsburg before
she’s on the Court. There are individual lawyers
people can picture and imagine as having a lot of
power, but I don’t think people always
appropriately estimate how much power all lawyers
have to bring cases to make law change, and I think
that’s what we’ve been seeing. I think Joe Mendelson
is a great example here. And as you mentioned,
we’ve had so many over the course of the season
of people who aren’t famous and they don’t seem
like they wield tremendous amounts
of power, but that’s what having a law license
enables you to do. It’s set in motion this whole
apparatus of legal change and legal process. Obviously, doesn’t always
lead to the biggest environmental case the
Supreme Court’s ever seen, but it creates that possibility. LESLIE KENDRICK: Something
that I didn’t realize was the bit that he told about
the Bush administration coming in, being generally kind of open
to and favorable toward climate change regulation. And that’s something
that I didn’t remember from that time period. And it’s striking there
too just how politics can change over time, the
sort of political valence of different ideas
can change over time. And that’s something
that’s happening outside of the courtroom
and outside of litigation. And it’s something about
the interaction between law and politics and culture,
and that was just a really kind of
striking example of that that I had lost track of. RISA GOLUBOFF: Me too. And as we come to the
end of the season, that makes me think, Leslie,
about the pandemic more generally and the
themes that we’ve been talking about
on the podcast and when law changed the world. And it really
strikes me that we’re talking about law
in a broad sense, and our different
stories have been about different kinds of laws at
different levels of government and different kinds of actors. But one of the themes
that you can see all throughout the season is
really the power of government, in its regulatory power,
in its spending power, starting way back with
Sarah Milov and the tobacco questions, where the
government really didn’t regulate
soon enough and took a while before the lawyers
were able to force the issue and really step in. And I think we see that
all the way throughout. And here we are in this pandemic
asking similar questions about the role of government,
the power of government, both as a spender
and as a regulator and as a purveyor of legal rules
that not all law is the same. And even as we talk about the
power of different actors, some actors really
have a lot more power to shape what
societal responses are going to look like to these
major disruptions in the world. LESLIE KENDRICK: That’s so true. And being in this
moment, you realize, we are in one of these
historic moments right now, where different
peoples’ decisions, individual decisions, big
policy decisions, they really do have a huge impact
on people’s lives. And having talked about
so many different pieces like that from the past
and that are ongoing– the anti-smokers movement,
pandemics of the past, climate change– to realize we’re in a
moment like that right now. I mean, we’re always in a
moment like that on some level, but it’s really, really
striking right now. RISA GOLUBOFF: I agree. Striking and
humbling and makes me grateful to be able to be
part of these conversations. So, thank you for
this wonderful season. LESLIE KENDRICK: Same here. Thank you so much. It’s been a real joy. And although we’re all
living in uncertain times, having the through
line of this podcast throughout all of it, with
all of our wonderful producers and our wonderful guests
and my wonderful co-host, that has made a huge difference. So I want to say
to our listeners too, thank you for
listening, and I hope that it’s provided you
with some amount of through line as well. RISA GOLUBOFF: Hear, hear. We hope to see you next season. [MUSIC PLAYING] LESLIE KENDRICK: That’s it
for this season of Common Law. We hope you’ve enjoyed
hearing about when law changed the world. And on the flip side, when
the world changed the law. RISA GOLUBOFF: If you’re
tired of social distancing, you can still get
closer to us online by telling us what you think. Rate or review us
on Apple podcasts or wherever you hear the show. To learn more about this topic
or catch up on other episodes, visit us at CommonLawPodcast.com
or follow us on Twitter @CommonLawUVA. LESLIE KENDRICK:
We’ll see you again in the fall when
our podcast resumes. And Risa, I hope we’re
back in the studio to see each other too. RISA GOLUBOFF: I
hope so too, Leslie. Common Law comes to
you from the University of Virginia School of Law. Today’s episode was produced
by Syndney Holliman, Robert Armengol, and Mary Wood,
with help from Virginia Cane. This show was recorded
remotely via our cell phones. I’m Risa Goluboff. LESLIE KENDRICK: And
I’m Leslie Kendrick. Stay safe and healthy, and
we’ll see you next season. [MUSIC PLAYING]

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