Ask the author: Lawyers’ law – Those who helped the Supreme Court shape the environmental law of the land

The following is a series of questions posed by Ronald Collins to Richard Lazarus in connection with Lazarus’ new book, “The Rule of Five: Making Climate History at the Supreme Court” (The Belknap Press of Harvard University Press, 2020).

Lazarus is the Howard and Katherine Aibel Professor of Law at Harvard University, where he teaches environmental law, natural resources law, Supreme Court advocacy and torts. His previous works include “The Making of Environmental Law” (2004) and “Environmental Law Stories” (co-edited). He was also the principal author of “Deep Water — The Gulf Oil Disaster and the Future of Offshore Drilling” (GPO 2011), the report to the president of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling Commission, for which he served as the executive director.

Lazarus was also the founding director of Georgetown Law’s Supreme Court Institute and has argued 14 cases in the Supreme Court.

Welcome, Richard, and thank you for taking the time to participate in this question-and-answer for our readers. And congratulations on the publication of your latest book. (Interested readers can also listen to your discussion of the book on a recent episode of the CleanLaw podcast.)

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Question: How would you describe the arc of your book, and who is the main intended audience?

Lazarus: The primary arc of the book covers about a decade. It begins with a single public interest attorney working for a shoestring organization and ends with the most significant environmental case ever decided by the U.S. Supreme Court, Massachusetts v. Environmental Protection Agency (2007).

Unlike any of my prior writings, the book is intended for a popular audience: people intrigued by how the Supreme Court decides cases as well as people who care deeply about the climate issue. Ever since I served in the solicitor general’s office and became immersed in Supreme Court advocacy, I have been looking for the right case that would allow me to tell a story that would highlight for the general public what makes Supreme Court advocacy, both by the advocates who argue before the court and by the justices seeking to persuade their colleagues, so fascinating and important. When the court decided MA v. EPA, I knew I had my case.

 

Question: A half-century ago, Professor Louis L. Jaffe wrote in a Buffalo Law Review article: “There is beginning to evolve a type of general legislation which would do two things: (a) establish the competence of citizens to bring original judicial actions as well as participate in the administrative process, and (b) establish a kind of judicial jurisdiction in which the court could itself adjudicate or could call on the appropriate administrative bodies to participate.”

Has the law evolved in the way Jaffe suggested it might?

Lazarus: I love this question because too many people have forgotten the enormous contributions Jaffe made to administrative law in the 1950s, 1960s and early 1970s. What almost no one remembers is that Jaffe could be fairly described as Harvard Law School’s first environmental law professor. He and a then-brand new junior faculty member named Larry Tribe co-authored in 1971 one of the first environmental law casebooks in the country.

Ok, but you did ask a great question, which deserves a direct answer. Jaffe’s statement well describes one of the signature accomplishments of modern environmental law in the United States: the use of citizen suits to guard against any shortfalls in the work of administrative agencies charged with administering the nation’s environmental protection laws. Thousands of citizen suits have been successfully brought not only directly against companies that violate pollution-control requirements but also against the federal government for failing to take the steps necessary to establish those pollution controls in the first instance. The MA v. EPA case is a great example. EPA had known for decades that greenhouse gases endanger public health and welfare, and they possessed the authority to restrict greenhouse gas emissions based on the plain meaning of the language Congress enacted in the Clean Air Act back in 1970. But it was not until after EPA lost MA v. EPA in the Supreme Court that the agency finally exercised that authority.

 

Question: The title and cover of your book suggest that it focuses on the justices and their role in deciding a landmark case, MA v. EPA. But your book is just as much about the advocates. Why do you think the work of trial and appellate litigators is often overlooked in law schools, casebooks and scholarly literature, and even by other litigators?

Lazarus: You are absolutely right that one of the central themes of this book is what a difference a good lawyer can make, especially in the Supreme Court. I think most legal scholars fail to appreciate the influential role that lawyers play in Supreme Court decision-making because the vast majority have never practiced before the court or otherwise had the opportunity to observe the work of wonderfully skilled advocates and appreciate their influence.

The legal academy repeatedly makes the mistake of reading the Supreme Court opinions in isolation from the advocacy that underlies those rulings. They speculate, theorize and pontificate about why and what the court ruled, without appreciating that more often than not, the best and clearest answers to the questions they pose can be found by looking at the briefs filed by the counsel in the case and the oral arguments they presented before the court.

Here too, MA v. EPA is a great example. A large number of law professors have published dozens and dozens of law review articles debating and discussing how and why the justices ruled the way they did in concluding that the EPA acted arbitrarily and capriciously in declining to decide whether greenhouse gas emissions endanger public health and welfare. What all the scholars missed is that the answer to the mystery they sought to solve is easily discoverable; it is unambiguously revealed in the written briefs and oral argument of the prevailing parties.

In their advocacy, the MA v. EPA petitioners deliberately framed the legal issue and pitched the case the way they did to have the best possible chance of securing a five-justice majority. And that same advocacy made clear what overarching themes and points of emphasis prompted the justices to rule the way they did.

 

Question: Tell us about James Milkey and how he figured into your statement that the “best environmental ‘lawyers’ are not the best ‘environmentalists.’”

Lazarus: First, we need to add to my statement the further admonition that they are instead the “best lawyers.”

Jim Milkey was a career attorney in the Massachusetts Attorney General’s Office who presented oral argument for the petitioners in the case, which included several dozen environmental groups and about a dozen states, territories and local governments. Milkey’s oral argument in MA v. EPA was, simply put, one of the best Supreme Court arguments I have ever witnessed, and I have seen hundreds. He was truly spectacular and so obviously so that, immediately afterwards, those on his own team who had strongly opposed Milkey’s presenting the argument readily admitted they were now eating “crow pie.”

The secret to Milkey’s success was that he understood that his job before the justices was to frame the argument in the way that maximized his chances of winning the case. That meant not standing up there and making the kind of argument that the environmentalists who had slept overnight on the sidewalk in front of the court to be in the courtroom that day wanted to hear, but the kind of legal arguments that could persuade a majority of justices to rule in his favor.

In MA v. EPA, like in most Supreme Court arguments, the trick is knowing where one’s arguments are actually fairly weak and then developing the best possible answer to the anticipated questions that expose that weakness, even if it means making a very narrow argument rather than a sweeping one.

Milkey’s responses were direct, candid and clear. I expect climate activists would have been baffled by his answers, but they were the answers of an outstanding lawyer, and they played a significant role in the petitioners’ winning the case.

 

Question: There is, as you observed in 2013, a certain “tension between scholarship and environmentalism.” Did that tension affect how you wrote “The Rule of Five”?

Lazarus: The tension I identified in 2013 relates to the fact that the voice I use as a legal scholar is very different from the voice I embrace as a Supreme Court advocate filing a brief on behalf of a client seeking to protect the natural environment from degradation. In the latter capacity, my job is to write the strongest possible legal argument in favor of my client’s interests. As a legal scholar, my job is different. It is to be far more balanced and transparent in my analysis and assessment of competing arguments. I do worry sometimes that too much environmental legal scholarship is what I would describe as advocacy scholarship that is not much different from a brief, and that environmental law scholarship suffers as a result.

I decided early on to tell the MA v. EPA story not at all from an advocate’s perspective. To be sure, I no doubt picked that case in part because I liked and applauded the outcome. But once I was telling that story, I worked hard to keep my voice neutral and to be fair in my presentation of all those involved in the litigation. That is one reason why I decided not to shy away from telling the full story of the conflicts behind the scenes. It is also why in the acknowledgments I single out the career government attorneys involved in the litigation who, although opposed to the MA v. EPA petitioners, then faithfully administered the Clean Air Act during the Obama administration in light of the ruling. They are the backbone of the nation’s government and deserve our gratitude and praise.

 

Question: There are a dozen or so footnotes labeled “Supreme Court employee,” obtained via interview by or email to you between May 4, 2015, and March 29, 2019. Without naming names, can you tell us if any of those “Supreme Court employees” were justices or law clerks?

Lazarus: Yes, I can. They were. But they were also not limited to justices or law clerks. Only Justice John Paul Stevens spoke with me at length on the record about the case. The only caveat that it is personally important for me to add is that I did not speak with any law clerk to a justice or a judge on the U.S. Court of Appeals for the District of Columbia Circuit unless that clerk’s judge or justice gave me permission to do so. I know that is a limitation few authors would follow. But as a law professor who regularly recommends my students for clerkships, I could not in good faith engage in a practice that I knew I would strongly counsel any of my own students against doing.

 

Question: In chapter after chapter, your book gives readers a true-to-life look at the inner workings of the key players in MA v. EPA – the litigants, the White House and the courts, replete with periodic agreements, irksome conflicts (e.g., the occasional “crippling personal acrimony that plagued the legal team”) and hard-fought compromises. It all makes for a revealing case study.

What lessons do you draw from that study?

Lazarus: First, it really pays to have a good lawyer on your side and then to consult with your lawyer before you make a big decision that is going to be challenged in court. The genesis of EPA’s refusal to regulate greenhouse gases that the court overturned in MA v. EPA was not EPA. It was Vice President Dick Cheney. EPA was not only never consulted, including its lawyers in the Office of General Counsel, but the Bush-appointed EPA administrator strongly opposed what Cheney was doing, as did several leading cabinet officers. But Cheney did an effective end-run around them all and persuaded the president not only to renege on his campaign pledge to regulate greenhouse gas emissions, but to formally announce that greenhouse gases were not “air pollutants” within the meaning of the Clean Air Act. In other words, without consulting any of the legal experts within EPA, Cheney had President George W. Bush announce the answer to a legal question. It was a bone-headed move and put into motion a series of mistakes by political appointees that undermined the Bush administration’s ability to win in court. Had they instead listened to the advice of career attorneys at EPA, the case never would have happened. Needless to say, I am glad it did!

Second, it is no less important to have a skilled Supreme Court advocate. The MA v. EPA petitioners included many terrific lawyers who contributed to the outcome. But there are still two who warrant special shout outs. Georgetown law professor Lisa Heinzerling did a masterful job in drafting a cert petition that should not have had a snowball’s chance in hell of being granted. But it worked, and her skills played a major role in that outcome, as did her excellent brief on the merits. The second of course was Milkey, already discussed, especially during the oral argument.

 

Question: In late February of 2017 you interviewed Stevens, the author of the court’s majority opinion in MA v. EPA. Based on that interview, you pointed out that Stevens went to some lengths to win Justice Anthony Kennedy’s vote, which was also sought by Chief Justice John Roberts and Justice Antonin Scalia, who were preparing dissents that were later joined by Justices Clarence Thomas and Samuel Alito.

Tell our readers what significant revisions Stevens had to make to two parts of his draft opinion to secure Kennedy’s vote in the eighth and final version.

Lazarus: Without question, a highlight of researching and writing this book was spending time with Justice Stevens in Florida. He has always been a hero of mine, which is also why I dedicated the book to him.

It took Stevens eight drafts to secure Kennedy’s vote, which Scalia and Roberts were very much trying to pry loose with their circulating dissents. Stevens had to change the opinion in two ways to obtain Kennedy’s formal “join.”

First, he had to embrace Kennedy’s view that resolution of the standing issue turned significantly on the injuries from climate change that would occur to Massachusetts in its sovereign capacity. Kennedy had made fairly clear at oral argument that he was sympathetic to the argument that states were to be favored in standing analysis, and Stevens’ opinion for the court both expressly stated that states deserved “special solicitude” and cited the early 20th-century Supreme Court case Kennedy mentioned at oral argument, which none of the dozens of briefs filed by the parties had once cited.

Second, Stevens had to make clear that EPA retained discretion on remand to continue to decide not to make a decision whether greenhouse gases endangered public health and welfare. And to retain his majority, Stevens apparently also had to muddy his reasons a bit as to why EPA had acted unlawfully. Sometimes Supreme Court opinions are deliberately made somewhat unclear in their important parts in order to garner the necessary votes.

One interesting related fact I discovered was that Stevens’ necessary compromises promoted Justice David Souter to draft a concurring opinion, joined by Justice Ruth Bader Ginsburg, that sharply criticized EPA’s recalcitrance. Once the majority was secure, however, Souter withdrew his concurrence, which was never published.

 

Question: As you observe, Stevens gave some thought to assigning the majority opinion in MA v. EPA to Kennedy. Although Stevens kept the opinion, he was absent from the court the day it was announced, leaving Kennedy to announce it in his place. Do you think Stevens’ absence was a way of paying tribute to Kennedy for his input and vote in the case?

Lazarus: That would have been a neat story, but no way. Stevens loved his time in Florida and went there as much as possible. He clearly left the Friday before the court announced MA v. EPA on Monday not as a tribute to Kennedy, but so he could have three additional glorious days in Florida when the court was about to go on a several-week break before the April argument session began. Even then in his late 80s, Stevens swam every day in the ocean and regularly played tennis.

During our conversation, Stevens joked to me that he enjoyed reading legal briefs on the beach, knowing that his colleagues would be jealous when they saw sand coming out of the briefs when he later opened them on the bench.

 

Question: You write that in his opinion in MA v. EPA, “Stevens had carefully taken a page from Chief Justice Earl Warren’s playbook in his masterful opinion for the Court in Brown itself.” What did Stevens take from the Warren playbook?

Lazarus: Like Warren in Brown v. Board of Education, Stevens wrote big, especially in the opening paragraphs, to make a broad public statement while simultaneously securing the votes he needed by making much quieter, subtle compromises on the actual remedy being delivered. In Brown of course what Warren sought and achieved was not merely a thin majority of five justices but unanimity. But the price of that unanimity was that the court postponed consideration of the remedy issue until Brown II, and then made clear that the transition to desegregation of public schools would not be instantaneous but instead be marked by “all deliberate speed.”

In MA v. EPA, Stevens’ opening paragraphs made clear the overwhelming importance to the nation of the climate issue, even identifying as “respected scientists” those who were warning the nation of the scope of the threat of climate change. But, he too, then compromised on the remedy, meaning the discretion EPA would have on remand, this to keep his majority vote secure.

 

Question: Two of your Harvard Law School colleagues have argued that the great value of the holding in MA v. EPA is that it exemplified an attempt by the judicial branch to safeguard judgments of administrative expertise from the politicization of science. Has that understanding of the case held up?

Lazarus: One thing Stevens said to me would seem to add force to that claim. Stevens expressed his frustration that so many Republicans were resisting the teachings of climate science. As a Republican himself, he found that especially disappointing. Stevens further made clear that was why he wrote the opinion the way he did. He very much wanted to make a statement to the American people about the seriousness of the climate issue.

 

Question: You did an on-the-record interview in 2018 with Judge David Tatel, who dissented from the three-judge panel that heard the 2005 Massachusetts case in the D.C. Circuit. You note that “there was almost universal agreement” among the lawyers for the petitioners “that they should not press the case further.” But they did. How did that happen? And would you have counseled seeking review by the Supreme Court at that point in time?

Lazarus: The only reason the petitioners sought further review in the Supreme Court after their loss in the D.C. Circuit was Milkey. Essentially everyone else on the petitioners’ side was strongly opposed (except presumably the lawyers in Milkey’s office who worked for him). The dozens of other lawyers who represented all the petitioners considered seeking further review way too risky, and they favored instead cutting their losses and litigating the issues in a different, future case. The pressure on Milkey to back down was tremendous.

The nation’s leading environmental groups lobbied Milkey’s boss, the Massachusetts attorney general, in an effort to persuade him to overrule Milkey. The president of the Natural Resources Defense Council even called Milkey personally to tell him “the future of the environmental movement was on his head” by recklessly insisting on seeking further review.

Milkey persisted and, of course, although the dozens of petitioners challenging EPA had filed one joint brief in the D.C. Circuit, any one of those parties had the right to seek further review, whether en banc at the D.C. Circuit or petitioning the Supreme Court for certiorari. The other petitioners lacked any power to stop the case.

What would I have counseled? What I found amusing is that I discovered in my research, which extended to all the email traffic between the petitioners, that both sides claimed at the time that they had spoken with me and that I supported their position! I actually have no distinct recollection and it is hard to recreate in hindsight. I expect I would have not been opposed to en banc review, but would have been worried about SCOTUS review, because I tend to be conservative about downside risks at the Supreme Court. Milkey insists, however, that I told him to go for it.

 

Question: You talk a lot about Article III standing. For example, you write: “[I]n the Court’s more than two-hundred year history the Justices had only once before ever granted review at the request of environmentalists over the government’s opposition.” The case was Sierra Club v. Morton (1972), in which the court held 4-3 that the environmental group lacked Article III standing. In his dissent in that case, Justice Harry Blackmun declared:

This is not ordinary, run-of-the-mill litigation. The case poses — if only we choose to acknowledge and reach them — significant aspects of a wide, growing, and disturbing problem, that is, the Nation’s and the world’s deteriorating environment with its resulting ecological disturbances. Must our law be so rigid and our procedural concepts so inflexible that we render ourselves helpless when the existing methods and the traditional concepts do not quite fit and do not prove to be entirely adequate for new issues?

Do you think a majority of the current justices will heed Blackmun’s admonition in any climate-change cases that come before them?

Lazarus: No. While I wish I did — because I believe Blackmun’s advice is sound — the justices today are far more conservative than in 1971 on the Article III standing issue. The chief justice, who is widely seen as the center of the court these days, has long taken a view quite different from Blackmun’s, as underscored by the chief’s separate and forceful dissent in MA v. EPA.

 

Question: In Juliana v. United States, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit held in January that the petitioners in the case had satisfied the requirements for Article III standing for their claims against the federal government alleging climate-change-related injuries caused by the government’s continuing to “permit, authorize, and subsidize” fossil-fuel use. Even so, the panel ruled it was beyond the power of an Article III court to order, design, supervise or implement the plaintiffs’ requested remedial plan, when any effective plan would require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches.

Do you think there is merit to that argument? How would you respond to it?

Lazarus: I have followed the Juliana litigation closely for many years. I believe the motivations behind the litigation are commendable and their political cause is just. The threats we face today from climate change are overwhelming and I understand why some are hoping that the courts may be persuaded to jumpstart the long-stalled climate lawmaking process before it is literally too late.

I am not, however, at all confident that their strikingly far-reaching theories of constitutional law will prevail in the courts, and I worry that by, declining to narrowly tailor their legal arguments the way the MA v. EPA petitioners did, they risk a potentially devastating loss that could seriously set back climate litigation.

 

Question: In dissent from denial of rehearing en banc in Coalition for Responsible Regulation v. EPA, then-Judge Brett Kavanaugh wrote: “The task of dealing with global warming is urgent and important. But as in so many cases, the question here is: Who Decides? … As a court, it is not our job to make the policy choices and set the statutory boundaries.” He then added that the “EPA went well beyond what Congress authorized” in fashioning a greenhouse gas permitting program.

If a majority of the Supreme Court adopted Kavanaugh’s view of the EPA’s authority, how would that affect the real-world viability of MA v. EPA?

Lazarus: I am not worried that the court is going to overrule MA v. EPA, though I would readily acknowledge that the case would likely have come out differently had Kavanaugh been on the court at the time it was decided instead of Kennedy. But MA v. EPA is the kind of recent ruling that will and should be respected by stare decisis.

The way that related litigation before the court is more likely to play out might be to undermine the potential of MA v. EPA to realize its full promise. Should a future EPA, unlike the current one, seek to fulfill that promise by promulgating ambitious and far-reaching regulations restricting greenhouse gas emissions, as happened under the Obama administration with its Clean Power Plan, Kavanaugh’s clear skepticism may make him far more likely to second-guess the legality of those administrative agency regulatory restrictions.

 

Question: You write that a “major Supreme Court ruling can play a critical role in jump-starting a too-long stalled lawmaking process.” But what happens when the court does not review climate-change cases and Congress is too divided to take action? Where does that leave environmental lawyers?

Lazarus: Perhaps surprisingly, not obviously worse off. MA v. EPA is without a doubt an aberration. It is the rare case in which environmental groups, having lost a case to the federal government, then obtained relief in the Supreme Court. Indeed, MA v. EPA appears to be the only case in which that has happened. When the court granted the environmentalists’ petition for a writ of certiorari over the federal government’s opposition, it was the first time the court had done so since the early 1970s, as you note, in Sierra Club. And in that case, the court in 1971 promptly ruled against the environmentalists on Article III standing. In MA v. EPA the environmentalists not only secured Supreme Court review against all odds, but then won on every issue before the justices.

But for that same reason, if the Supreme Court were to back out entirely of environmental law cases, environmentalists would on balance have more reason to be relieved than worried given the court’s current makeup. The court for the past several decades has mostly taken cases that environmentalists have won in the court below, expecting to reverse. Thus, the best environmentalist groups can do is stay even by persuading the court to affirm. If the court were not to grant those cases, that would be good news for them.

With that said, how great would it be to have a Supreme Court full of Tatels(!), who, as you mention, dissented from the majority ruling of the D.C. Circuit in favor of EPA in MA v. EPA. Tatel is a spectacular judge and jurist, whose opinions always reflect rigorous, careful legal analysis. Importantly, he is also someone who plainly appreciates the critical role that judges can play in ensuring that the nation’s environmental protection laws are maintained and enforced.

Unfortunately, since the dawning of modern environmental law in the U.S. in the 1970s, we have had a Supreme Court more skeptical than sympathetic to strict enforcement of environmental protection requirements. I still look forward to the day when there are more justices like Judge Tatel on the Supreme Court.

 

Question: In one of the cases you argued before the court — City of Chicago v. Environmental Defense Fund (1994) — the government argued that the “practical results of this case closely parallel Chevron itself, where the issue was whether the Clean Air Act regulates stationary sources on a plant-wide or component-by-component basis, and as in Chevron, the Court should look for guidance from the administrative agency that is the expert in this field and that is charged with administering the statute.”

You talk about Chevron v. Natural Resources Defense Council in your book. How important is the rule in the area of environmental litigation?

Lazarus: Chevron is of first-order importance. For a simple reason. Congress has basically shut down environmental lawmaking since its passage of the Clean Air Act in 1990. Hyper-partisanship has led to legislative paralysis. As a result, federal agencies like EPA are required to address contemporary problems like climate change based on statutory language that was enacted decades earlier by a Congress wholly unaware of the problem.

The application of old language to new problems routinely creates statutory ambiguities, which is in turn why courts’ willingness to defer based on Chevron to such agency interpretations in subsequent environmental litigation can often be outcome-determinative.

 

Question: “The last fifteen years have witnessed a fantastic effort to develop a framework of legal rules reflecting this nation’s increased awareness of the adverse impacts of environmental pollution and degradation.” That was your take on the legal world in 1986.

In your epilogue you paint a quite different picture of the current world of environmental law, flagging many current trends to the contrary. Yet you remain optimistic: “The climate issue can still be effectively addressed.” How so?

Lazarus: When I began researching for “The Rule of Five,” the prospect of Donald Trump’s becoming president of the United States was never something that remotely crossed my mind. Or anyone remotely like him, who would seek to unravel all the important climate change lawmaking initiatives developed during the Obama administration. A mainstream-conservative Republican president would have never done so, given the increasing clarity of the climate change threat and the general understanding of most in the business community that such emissions reductions are prudent and needed. When I began this project, the story’s arc was fairly clear, ending with this extraordinary feat of Supreme Court advocacy resulting in an historic court ruling that led to the no less historic Paris Climate Agreement in 2015.

In the book’s epilogue, I address the significance of Trump’s election and, as you suggest, end with an optimistic message. No doubt part of that optimism is a reflection of my own personality and outlook on life. But that optimism also derives from the MA v. EPA story itself: How outstanding lawyers committed to environmental protection causes can defeat no less than the president of the United States, as happened in MA v. EPA, and make climate history.

Lawyers, including many of the same lawyers who played important roles in  MA v. EPA, continue to do this today. They are bringing a highly coordinated, sophisticated and targeted series of lawsuits that have to date successfully prevented much of Trump’s effort to unravel the climate successes of the Obama administration. Happily, also, they appear to have learned from the mistakes they made in the MA v. EPA litigation, even while winning. They do a much better job now of working together as a supportive community in their litigation. One does not today see the kind of internal conflicts that occurred in MA v. EPA, which were so intense and destructive that they threatened the petitioners’ ability to be effective advocates.

With that said, the book acknowledges that whether the full promise of MA v. EPA will ultimately be realized depends on more than the votes of justices or judges in environmental litigation. Such lawsuits play a critical role, but long-term environmental protection, which is what climate change demands, requires the votes of individual citizens across the country casting their ballots in favor of elected officials committed to addressing the threat of climate change. There are no judicial shortcuts to the role of elections in how we choose to make our laws. And although MA v. EPA clearly made history, true and lasting historic changes happens with elections, which is also why the election this November is so critically important.