Rule of 5




Sleuthing for artists contextualizing Climate Change, I came upon ‘The Rule of Five’ (Rule) by Professor Richard J. Lazarus. OK, I read a few chapters—they seemed dry. While bored on Zoom, I began flipping Rule, discovering sub plots where Lazarus described Supreme Court history and rituals: Chief Justice (and former President) Taft’s Depression-era marble Courthouse, costing under $10 million; Justices lunching together--who ate yogurt, who had a peanut butter sandwich; homage to the age that is past--Justices sitting in chairs of predecessors. I was hooked, after reading that Chief Justice John Marshall made his colleagues drink Madeira because he was allegedly the importer (225).

I began an incredible journey, beginning in 1999, with Joe Mendelson, an unknown public interest attorney, cramped into a dingy DC flat, frustrated that Congress (Republican majority) and the administration (Clinton) weren’t realizing air pollution. Before reading Rule, I was aware the Environmental Protection Agency (EPA) had been stymied by the Trump administration; I was surprised how much EPA had been muffled in the past. Since its 1970 inception (Nixon), EPA had been subject to political pressures and, “would not take any steps to exercise its Clean Air Act authority to restrict greenhouse gas emissions (15).” EPA’s administrator is picked by the President and confirmed by the Senate. Mendelson drafted a petition demanding EPA get tougher on greenhouse gas emissions from new cars (19). Under George W. Bush (with Dick Cheney) greenhouse gases were truly not considered air pollutants, EPA was directed not to regulate, and this administration truly dismissed Climate Change (37).

By 2003, denial of Mendelson’s petition attracted environmental groups who formed The Carbon Dioxide Warriors (Warriors) (55, 56). Enter Jim Milkey of the Massachusetts Attorney General’s office who “wanted Massachusetts [and himself] to be the lead state counsel in the case.” ‘Massachusetts v. EPA’, was about to be heard in federal appellate court for the District of Columbia (58, 61, 65).

Lazarus comments, “The EPA argued, in effect, that the Clean Air Act’s broad definition of air pollutant should not be understood to include greenhouse gases unless and until Congress expressly considered, debated, and decided how the climate issue should be addressed (71).” In 2005, two of the three appellate judges ruled in favor of the EPA. Judge David Tatel who was out-numbered said, “It is obvious that none of EPA’s proffered policy reasons justifies its refusal to find that [greenhouse gas] emissions endanger public health and welfare (104-105).”

Massachusetts Attorney General Tom Reilly encouraged Milkey to file a petition for rehearing in the appellate court, which was denied. Heading to the Supreme Court was next (107-109). Professor Lisa Heinzerling, Georgetown Law, joined the Warriors to write the petition for a writ of certiorari (cert), which asked the Supreme Court to review the lower court decision (113).

In 2006, cert briefs from the Massachusetts side and from the Solicitor General’s office (representing EPA) landed in the path of the Justices and their worker-bee clerks. With luck, ‘The Washington Post’ editorialized, “that the Justices should nonetheless grant review (130).”

The Supreme Court granted the cert petition to hear Massachusetts v. EPA (132). More briefs would have to be written and who would argue the case needed to be decided. The Warriors’ egos exploded. Milkey was chosen in spite of colleagues circling to replace him. Heinzerling remained to draft briefs. (144,153). This critic feels she did not obtain her much deserved day in court!

It’s hard to unpack in today’s world, where Global Warming is so visible and destructive, why the opposition’s argument, even at the time, stemmed around two issues. “First, Congress had not specifically contemplated regulation of greenhouse gases, when it passed the Clean Air Act in 1970. That basic fact was largely undisputed. And second, the Clean Air Act assumed characteristics about air pollution--for instance, that pollution concentrations in the air varied by geographic location—that were not true for greenhouse gases, for which there is one uniform atmospheric concentration across the entire globe. As a result, some of the Clean Air Act provisions would make little sense if the term ‘air pollutant’ were defined to include greenhouse gases (148).”

In 2006, after much moot court practice, Milkey presented his 30 minute case. Jousting was Justice Scalia. Lazarus interprets Scalia, “Even before joining the Supreme Court, Scalia as a D.C. Circuit judge had publicly vented his frustration with the willingness of courts to allow environmental plaintiffs to bring the very kind of lawsuit Milkey was asking the Court to endorse in ‘Massachusetts’….Scalia had declared that while such lawsuits, designed to ensure strict enforcement of the environmental laws…met with approval in the classrooms of Cambridge and New Haven, they were not equally applauded in the factories of Detroit and the mines of West Virginia (188).”

In 2007, the Justices voted 5-4 to reverse the appellate court ruling—needed Rule of Five! Unlike TV courtroom shows, the decision would not be announced for months.

Justice Stevens was picked to write the ‘opinion of the court’ (235). He addressed Climate Change head on, described in Lazarus’ analysis, “how greenhouse gases that caused climate change were clearly ‘air pollutants’ subject to the Clean Air Act, and how important it was for the EPA to better explain its reasons for not regulating such pollutants (246, 247).” Sierra Club’s attorney, David Bookbinder, interpreted Stevens’ ruling, “ EPA [has] authority to regulate greenhouse gases from everything (260).”

In 2008, the Obama administration began energetically promoting Climate Change. Lazarus concludes ‘Massachusetts v. EPA’ helped to create the Paris Agreement, which the Trump administration rudely abandoned (284, 287).

Professor Lazarus’ email to this critic, “The central lesson of the Massachusetts story for me, which I discovered only after writing the book, was the extraordinary, indeed historic difference one, truly dedicated person could make. In Massachusetts, there were several who, in almost tag-team fashion, picked up the baton along the path to the Court’s ruling. Of course, there was Joe Mendelson — a true hero for me. The pressures on him were enormous, putting his livelihood at stake as a young parent in pushing his petition. There were both Lisa Heinzerling and Jim Milkey. Although they ended up sadly in great, destructive personal conflict with one another, almost Shakespearean in nature, each played an essential role and were immensely talented. Jim’s push for Supreme Court review and his delivery of the oral argument took both great professional courage and personal stamina. He was literally wiped out afterwards, utterly exhausted by the ordeal. And, finally, the truly amazing John Paul Stevens, who threaded the needle in drafting an opinion that both achieved the five votes critically necessary and sent a resounding message to the public about the need to take seriously the threats presented by climate change.”

In view of recent events: Pandemic and Black Lives Matter, non-objectivity which triggers change is often elusive. That is what makes Rule a fascinating read—situations sparring between the concrete versus the gossamer. While Global Warming appears sidelined, it will be back, with artists continuing to visualize damage and necessary adaptations.

Mini Sleuth: ‘Rule of Five: Making Climate History at the Supreme Court’ by Richard J. Lazarus on Amazon. Thank you, Professor Lazarus for your ability to spin a narrative with purpose. Vote responsibly in November.

Jean Bundy is the AICA Co-Envoy for Climate Change.

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