Science_-_6_March_2020

1082 6 MARCH 2020 • VOL 367 ISSUE 6482 sciencemag.org SCIENCE

PHOTO: FENG CHENG/SHUTTERSTOCK.COM

T

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 had

come, 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 the

District 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. j

10.1126/science.aba8125

ENVIRONMENTAL POLICY

By Michael B. Gerrard

The 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,

2020. 368 pp.

The Massachusetts v. EPA decision empowered the EPA to regulate domestic

greenhouse gases.

INSIGHTS | BOOKS

The 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