1082 6 MARCH 2020 • VOL 367 ISSUE 6482 sciencemag.org SCIENCEPHOTO: FENG CHENG/SHUTTERSTOCK.COMT
he U.S. Supreme Court’s 2007 deci-
sion in Massachusetts v. Environ-
mental Protection Agency is widely
seen as the most important U.S. envi-
ronmental ruling of all time. But the
suit, which led to a ruling that the
Clean Air Act of 1970 empowered the U.S.
Environmental Protection Agency (EPA)
to regulate greenhouse gases, was almost
never brought. Richard J. Lazarus’s won-
derful new book, The Rule of Five, is the
inside story of how this case came to be,
how its lawyers struggled and
fought over theories and roles,
and how the late Justice John
Paul Stevens patched together
the five votes needed to secure
a majority.
Lazarus is ideally suited to
tell this story. A law profes-
sor at Harvard, he has repre-
sented the government and
environmental groups in 40
Supreme Court cases and pre-
sented oral argument in 14. He
also roomed with John Roberts
during law school, and they
later taught a course on the
history of the Supreme Court
together. For this project, he
interviewed almost everyone
involved in the case, including
several of the judges and jus-
tices and (with their permis-
sion) their law clerks, and had
access to internal memos and
drafts of opinions.
The case in question was the
brainchild of Joe Mendelson,
a lawyer working for a little-
known environmental group in Washing-
ton, D.C., called the International Center
for Technology Assessment. In 1998, he
drafted a 35-page petition to the EPA, ar-
guing that it was the agency’s responsibil-
ity to regulate carbon dioxide and other
greenhouse gases as pollutants, and put it
in a drawer, awaiting the right time to file.
A year later he decided that the time hadcome, but leaders of other environmental
organizations pleaded and then pressured
him not to file, thinking it would be bet-
ter to wait for the expected ascension of a
climate champion, Vice President Al Gore,
to the presidency in January 2001. Mendel-
son filed anyway.
The EPA sat on the petition until after
the November 2000 election. When George
W. Bush took office, the agency’s newly
instated political appointees fumbled the
response in a way that made it easier to
challenge in court. In 2013, 30 parties filed
suits in the U.S. Court of Appeals for theDistrict of Columbia, but the court dis-
missed them in a 2-to-1 split.
There are always long odds when one
seeks to persuade the Supreme Court to
take a case, but they are even longer when
a side has legions of squabbling lawyers
with different legal theories and just one
chance to file a brief. But Lisa Heinzerling,
a professor at Georgetown Law School,
wrote what all agreed was a brilliant brief
on behalf of the petitioners, and—to every-
one’s shock—the Supreme Court took the
case. Then began the fight over who would
get to argue it.This honor ultimately fell to James Milkey,
a lawyer in the Massachusetts Attorney Gen-
eral’s Office who had never argued before the
Supreme Court. As they had done with Men-
delson, many other lawyers working on the
case tried to get Milkey to step aside, claiming
that he was not up to the task.
But Milkey persisted, and—with
the help of additional brilliant
briefs led by Heinzerling—on
argument day, he shone. In the
months that followed, Justice
Stevens found ways to persuade
his colleague Anthony Kennedy
to give him the crucial fifth vote
needed to prevail.
Lazarus walks readers
through all of the procedural
steps and legal theories that
surrounded this case, using lu-
cid prose that is easy for non-
lawyers to follow. The book is
a master class in how the Su-
preme Court works and, more
broadly, how major cases navi-
gate through the legal system.
The Massachusetts v. EPA
decision was the basis for
almost all of the Obama ad-
ministration’s actions on cli-
mate change, which included
stricter regulations of emis-
sions from motor vehicles and
power plants. These actions, in
turn, gave President Obama the legitimacy
to press fellow world leaders to reach a
landmark agreement on climate change in
Paris in December 2015. However, in Febru-
ary 2016, the Supreme Court put Obama’s
Clean Power Plan on hold, and President
Trump has pressed to repeal it, to weaken
the motor vehicle rule, and to pull the
United States out of the Paris Agreement.
As Lazarus rightly concludes, the most im-
portant legal decisions are made not in the
courtroom, but at the ballot box. j10.1126/science.aba8125ENVIRONMENTAL POLICYBy Michael B. GerrardThe landmark case that almost never was
A law professor investigates the legal decision to regulate U.S. greenhouse gases
The Rule of Five:
Making Climate History
at the Supreme Court
Richard J. Lazarus
Harvard University Press,- 368 pp.
The Massachusetts v. EPA decision empowered the EPA to regulate domestic
greenhouse gases.INSIGHTS | BOOKSThe reviewer is at the Sabin Center for Climate Change Law,
Columbia Law School, New York, NY 10027, USA, and is
the co-editor of Legal Pathways to Deep Decarbonization in
the United States (Environmental Law Institute, 2019).
Email: [email protected]Published by AAAS