Air Date: Week of May 8, 2020

Transcript

CURWOOD: It’s Living on Earth, I’m Steve Curwood.

We continue our conversation now with Harvard Law Professor Richard Lazarus, whose new book, The Rule of Five, chronicles the harrowing journey of one of the most important environmental cases to be heard before the US Supreme Court.

CURWOOD: Now, one of the reasons that your book is so compelling is that we really get to know the people involved in this case. People like Jim Milkey --

LAZARUS: Right.

CURWOOD: -- who ultimately presented the oral argument in front of the United States Supreme Court. Tell me who he was and why he was so invested in this case.

LAZARUS: Yeah, so Jim Milkey is a career attorney in the Massachusetts Attorney General's office. He went to undergraduate here at Harvard College; he went to law school at Harvard Law School. You know, many of the Harvard-Harvard types, they go off and they decide to make some money in the private sector. Jim Milkey didn't do that. He went to the Massachusetts Attorney General's office. He was a career attorney in the environmental division and Jim, to some extent, is like Joe Mendelson. In the early 2000s, he becomes increasingly concerned about the climate issue. And he starts looking for a case that he thinks he and Massachusetts can make a mark. And after they deny Joe Mendelson's petition, he basically links arms with Joe Mendelson, 11 other states, and several dozen environmental groups. But Milkey does more than that. Milkey wants Massachusetts to take the lead in this case. He basically maneuvers in a very clever way for Massachusetts to be the lead. And that's why the case is called Massachusetts versus EPA. So he played an important role there early on. But there are really two instances in this case that Jim Milkey played absolutely critical roles.

CURWOOD: Okay, and those are?

LAZARUS: First, he was the only person, really, who thought they should seek further review if they lost in the US Court of Appeals for the DC circuit. Everyone else thought, "don't do it. Let's not do that. It's too risky. We could lose everything. You know, we didn't lose so much so far. Let's just wait for another case." Jim Milkey said, "No, I think this is a good case. I'm willing to roll the dice," under enormous pressure not to do that.

CURWOOD: And before you give us the second, remind us why the case was at the Court of Appeals.

LAZARUS: Right. Basically, after EPA denied Joe Mendelson's petition, the way the Clean Air Act operates, when you challenge the EPA's decision, there's only one court you can bring your challenge. And that's the US Court of Appeals in Washington, DC. They're experts in administrative law. They do a lot of reviews of federal agency action.

CURWOOD: And in fact, he loses there.

LAZARUS: He loses there, in a very odd opinion, where two judges rule that EPA is right, but they actually can't agree on a rationale. Judge David Tatel is the one judge among the three judges who hear the case who believes that they're right, and he writes a blistering dissent. I spoke with David Tatel at length in his office about this. He felt very strongly about the case. The son of a physicist, someone who actually equated addressing the climate issue with civil rights concerns: underrepresented, future generations, whose lives and livelihoods are at risk; Tatel, before he went on the bench was a civil rights lawyer himself. He went to his clerk, after he learned the vote was two to one, he'd be in dissent, and he said to his clerk: "Make it long". He wanted to anything he could to make it possible the Supreme Court might hear this case. He wrote 50 drafts of his dissent with his law clerk before they published it.

CURWOOD: Let's go back for a moment to Jim Milkey's situation. You gave us one instance, and the other?

LAZARUS: The other is that when the case was before the United States Supreme Court, Jim Milkey presented the oral argument, for all the groups. In the US Supreme Court, the Justices only let one person argue per side. There were, you know, about 35, 36 or more petitioners on the same side. But the Supreme Court says, we don't care. You have to have one person present your argument. There is a battle, and a battle royale, about who should argue the case. Everyone always agrees on the easy thing: we should have the best person argue the case. And then, they tend to disagree about who the best person is. Jim Milkey prevailed in this case. And Jim Milkey really did present one of the single best oral arguments I have ever heard in the United States Supreme Court. And I could certainly tell you that a lot of people thought he wouldn't do that before he stood up there. But that day he was on all cylinders.

CURWOOD: Were you there that day?

LAZARUS: I actually was there that day. When you go to a Supreme Court argument, you're on pins and needles, because you know how much somebody's prepared. You know what the weaknesses of a case are, you know what the strengths are. But you're waiting to find out, what do the Justices think? And when the Justices get together for oral argument, for that one hour, which is the amount of time they devote to an oral argument in any one case, 30 minutes each side, it is the very first time the Justices learn what their colleagues think about a case. They have a tradition of not talking about the case and their views of the case before the oral argument. So two things are happening when the Justices start asking questions. One is the advocates, the lawyers like Jim Milkey, who are presenting the argument, they learn for the first time hints about what the Justices think. Second, the Justices learn what their colleagues think. So what you see during the oral argument is as much a debate and discussion between the Justices as anything else. The Justices don't address each other directly, they ask questions through the lawyer, but everyone knows what's happening. In the Massachusetts case, Jim Milkey's petitioner, he stands up there first. The beginning argument, it's no surprise, Justice Antonin Scalia is all over him. A master of oral argument, a master of destroying a party to whose position he's opposed. And a champion of Article III standing, someone who'd written that environmental groups should not have Article III standing to bring cases, generally in many instances. And Scalia was all over him. He asked about 23 questions.

CURWOOD: In the course of?

LAZARUS: Oh, in the first 18 minutes. He asked him question after question, and he didn't even get to the second issue until after 18 minutes. That first 18 minutes is Scalia, again and again. And Scalia was the master of oral argument, of taking your answer, mocking it, trying to find some weakness, whether it was there or not. And basically unraveling you before the court. What was amazing, was Milkey never took the bait. He's being pummeled by Justice Scalia, and he answers every single question, over and over again, directly, candidly, convincingly; I mean, he really disarms Justice Scalia. You didn't see that happen very often. But even when that first 18 minutes is happening, as significant as it was, it's when Justice Kennedy asked a question, towards the end of that discussion, because when Justice Kennedy asked a question, everyone in that courtroom, including myself, we leaned forward. Because we were about to find out what Justice Kennedy thought. Kennedy spoke, and Kennedy asked Jim Milkey, he said, "Well, what's your best case, Counsel, for the argument that a state like Massachusetts has sort of some special right to have standing here, given the injury to the state from climate change?" And Jim Milkey gave an answer; it wasn't a sort of first-order answer. And Justice Kennedy cut him off. He said, "Well, Counsel, isn't your best case Georgia v. Tennessee Copper?" Well, that was a case decided at the very beginning of the 20th century. It was a case which had not been in any of the about 42 briefs filed in the case. No one had identified that case. When Justice Kennedy said that, everyone thought, Justice Kennedy did his own research. Justice Kennedy thinks this case helps Massachusetts. Jim Milkey thought to himself, if Georgia v. Tennessee Copper is good enough for Justice Kennedy, it's good enough for me. And, in the audience, we all basically thought to ourselves, five. The fifth vote was there. To win in the United States Supreme Court and why the name of my book is The Rule of Five, it takes five votes. And when Justice Kennedy said that, we were pretty confident we had five, at least on the standing issue. And that was the issue one could not afford to lose on. That was a big moment in the courtroom.

CURWOOD: So there's this successful argument. What happens after the argument?

LAZARUS: Well, when the argument ends, the Chief Justice bangs the gavel and says, "The case is submitted." The advocates get up and they leave. But that's when the action shifts, from one side of the lectern, where the lawyers stand to argue, to the other side of the lectern, where the Justices sit. The Justices stand up, they leave the courtroom. And then two days later -- this time it was Friday morning, December 1 -- they meet. They meet in conference to basically decide the case. And they went around the room, each one voting one at a time, and the vote was five to four, with Justice Kennedy supplying the fifth vote. But what most people don't realize is that's a tentative vote. There's nothing permanent about that. Justices change their mind all their time. Justice Kennedy was known to change his mind, and he'd been known to change his mind in big civil rights cases and in environmental cases. So what happens is, it's a tentative vote, and the person writing the opinion for the majority, in this case it was John Paul Stevens, he has to write an opinion that Kennedy agrees to join. And until five Justices join that opinion, it's not an opinion of the court. And Justice Stevens here, who assigned himself the opinion, knows he's not the only one trying to get Kennedy's vote. Justice Scalia and Chief Justice Roberts, they're writing dissenting opinions, and they're going to try to coax Kennedy back to their side, and turn their dissents into majorities. So Justice Stevens, he could have said, I'm gonna assign the opinion to Justice Kennedy. If he does that, the odds are very high Justice Kennedy will stick with that side. But the downside is he might write a very narrow opinion, which doesn't do very much. Justice Stevens wanted to write a sweeping opinion. So he had to write in a way which didn't lose his vote. And it took him a lot of drafts, took him eight drafts to do that. He did his first draft, and he didn't, he had four votes, including himself, he didn't have five. He did his second draft, he had four votes. His third draft, four votes. He's starting to have to make some compromises, that's what you need to do. It's not until sort of mid to late March, that Justice Stevens produced his eighth draft. And Justice Kennedy joins it. Bingo. That's opinion of the court.

CURWOOD: And by the way, you write in this that, in more modern times, Chief Justice Roberts was not in favor of upholding what we call Obamacare, the Affordable Care Act. And in that initial conference said no, but then changed his mind.

LAZARUS: Yeah, actually, I don't know that personally, myself, unlike like a lot of things I know about Massachusetts v. EPA, but that's what people have found out in talking to law clerks and the Justices. So I'm taking that at face value. That's a good example though. It's a good example of how you vote one way at conference, and then you change your mind. There's a discipline to writing, which makes people think about things in a deeper, more rigorous way. And so it's not surprisingly, the Justices change their mind. Sometimes they find, something that seemed intuitively clear, when you actually have to deal in writing with the legal issues, you change your mind. That's a good thing. We want our Justices to be thinking hard about issues. You know, we want them to not just think, Well, what do I think my intuition tells me. They're writing an opinion for the court, which is going to have to, you know, pass the test of time. But there's a risk involved. And Justice Stevens knew he had to write an opinion. And it would only become law and opinion of the court, if he could convince four Justices to join him. And he did that successfully, which is why I call him the Jedi Master.

CURWOOD: So how big a case was this? How does this compare, say, in scope and import to Brown versus the Board of Education, for example?

LAZARUS: Well, in the first instance, there's no Supreme Court case as important as Brown v Board of Education. I mean, that is, by every possible measure, the most significant decision the United States Supreme Court has ever rendered. But in the world of environmental law, this is our Brown v Board of Education. This is by far the most important decision the court has ever ruled on, because of the topic, which is climate change, the most important pressing issue of our time, and because of the practical import of the ruling, and that is it formed the legal basis of everything the Obama administration did for eight years, every single one of the significant greenhouse gas initiatives of the Obama administration made possible because of Massachusetts v. EPA, and in turn, the Paris Climate Agreement only happened because of everything that Obama did and his EPA did during those eight years.

CURWOOD: So this case did allow, of course, EPA to find that carbon dioxide is an air pollutant, and a dangerous one, it's endangerment finding. But some might say, you know, even with this court decision, we're not making a lot of progress right now in terms of actively taking on the threat of climate disruption. Where do we go from here?

LAZARUS: Well, I think actually, that the Obama administration rules were making an enormous amount of progress. The methane rules; the motor vehicle rules; the waiver allowing California and a dozen other states to regulate greenhouse gas emissions more stringently; the Clean Power Plan, which was absolutely a brilliant, very measured and pragmatic plan, but would lead to sharp reductions in greenhouse gas emissions for the United States. And that's what allowed other countries of the world to finally say, all right, the United States is actually doing something about it. With that said, even when Obama did by himself, even the Paris Accord was not by itself going to eliminate the threat of climate change. That's, of course, what was so disturbing, unsettling about the presidential election of 2016, because so much of that effort is being threatened by the Trump administration. Now, I say "threatened": the current administration has not yet successfully unraveled what President Obama did, but they've threatened too. They've lost a lot of lawsuits in the past several years which have stalled their efforts. If President Trump loses the election in November of 2020, most everything the Obama administration did can be put back together again on climate. If on the other hand, the Trump administration gets another four years, that'll be harder. And that's why this election is so important. But it's also why it has another lesson in my book about Massachusetts v. EPA, and that is even big cases, even a big case like Massachusetts v. EPA, a big case like Brown v Board of Education, it can have much promise, it can allow things to happen that otherwise couldn't happen. But they're never the end game. It takes more than the votes even of five Justices to make transformative change to address a pressing issue, like climate change. Massachusetts v. EPA has great promise. It's allowed extraordinary laws to be enacted by the executive branch. But whether that promise is realized, will depend on the voters, and the elected officials who they choose.

CURWOOD: Harvard Law School Professor Richard Lazarus's new book is called The Rule of Five: Making Climate History at the Supreme Court. Thank you so much, Richard, for taking the time with us and telling this story, which I have to recommend if folks want to read a good one, this is one. Thank you so much.

LAZARUS: Thanks, Steve. Always a delight.