The Volokh Conspiracy

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Climate Change

"Taking Carbon to Court"—Massachusetts v. EPA and The Rule of Five

A review of Richard Lazarus' chronicle of the Massachusetts v. EPA litigation in The New Atlantis.


Massachusetts v. EPA was unquestionably the most important environmental law decision of the Roberts Court. By a 5-4 vote, the Supreme Court concluded that states had standing to sue the federal government over the latter's failure to regulate greenhouse gases, that such gases could be regulated as "pollutants" under the 1990 Clean Air Act, and that the Bush Administration, in refusing to adopt such regulations had acted arbitrarily. This decision set federal climate regulation in motion and helped unleash a torrent of state-driven policy litigation against the federal government.

In The Rule of Five: Making Climate History at the Supreme CourtHarvard law professor Richard Lazarus provides an eye-opening insider's account of the Massachusetts v. EPA litigation from its initial inception through to the ultimate decision. With extensive access to the players and their files, Lazarus offers a clear window into how the case was brought, how it was almost scuttled, and how the environmentalists ultimately prevailed. Professor Lazarus is quite sympathetic to the cause he chronicles, but he is also an insightful and perceptive observer who know how to tell the tale.

I reviewed The Rule of Five for the Fall 2020 issue of The New Atlantis. My review is now out from behind the paywall, so I encourage you to take a look. Here's a taste:

Despite the repeated failures to pass climate bills in Congress, a lawsuit to authorize federal regulation of greenhouse gases prevailed in the Supreme Court. In 2007, in Massachusetts v. EPA, the Court ruled 5 – 4 that greenhouse gases are air pollutants subject to regulation under the Clean Air Act adopted in 1970, and last amended in 1990. Though unable to persuade majorities in Congress, environmental advocates convinced a majority on the Court. The resulting decision instantly shifted the climate policy terrain and destabilized established legal understandings in administrative law.

But despite that victory thirteen years ago, what remains unclear to this day is whether the ruling has meaningfully advanced efforts to stabilize atmospheric concentrations of greenhouse gases. What is clear, however, is that the ruling has helped to unleash a new generation of ­policy-driven litigation, exacerbating the tendency of elected officials to pursue change in agencies and courts instead of in legislatures.

The full review is available here.

UPDATE: I neglected to mention that Professor Lazarus discussed The Rule of Five in a webinar sponsored by the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. It was an informative and engaging talk. Highly recommended.