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.

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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.

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  1. It was an amazing ruling to label as a pollutant a naturally occurring atmospheric constituent without which there would be no life on earth.
    Where is the science in that?

    1. And which, like water, is necessary for plants to grow.
      Could it be that more CO2 results in more plants growing much like a ranier climate does?

      1. “And which, like water, is necessary for plants to grow.”

        Covered under “without which there would be no life on earth”.

    2. Uh, they were deciding a legal question, not a science question. The issue is what the word ‘pollutant’ means in a particular statute, not how ‘science’ would characterize it.

      1. To be clear, that doesn’t mean I’m endorsing their decision. But it does mean that you were asking the wrong question.

  2. The climate religion sure has a lot of otherwise sensible people convinced that:
    A. They know the future.
    B. A little warmer weather will be catastrophic.
    C. Humanity can’t adapt to gradual changes that happen slowly over 100 or 200 years.
    D. Emotion-based rituals they personally perform, like recycling a can, matter a lot and can “save the Earth”.
    E. Their devotion to the climate religion makes it ok to hector and bully others into observing the same meaningless rituals.
    F. Other countries care whether their city or state has some local policy about carbon.
    G. Their unquestioning faith in computer models they don’t understand makes them intelligent and virtuous rather than just another congregation listening to just another type of priests telling just another set of stories about the future.
    H. Earth’s climate is an unstable system balanced on a knife’s edge, wildly swinging from one extreme to another in response to stimuli rather than a stable system that tends toward a moderate equilibrium.

    It’s one of the major reasons Americans can’t get along politically: half the country doesn’t want to join the religion and won’t listen when told their car or their air conditioner or their BBQ is sinful. And the other half won’t take no for an answer because belief in climate doomsday is central to their life.

    1. A. Their models cannot predict the last 20 years, even with perfect hindsight.
      B. It was warmer 1000 years ago (Greenland raised cattle), in Roman times (olive trees grew higher in mountains than now), in the Bronze age, and many times further back.
      C. Humans and their precursor mammals have been adjusting fine since dinosaur times, when the CO2 concentration was 2000 ppm, five times higher than now.
      D. Yet skeptics are the ones with closed minds.
      E. Their mantra that “the science is settled” shows that they don’t have the slightest inkling of what science is. If it’s settled, it ain’t science. If it’s science, it ain’t settled. And whatever it is that’s settled, why do they demand billions more in basic climate research, and why do they keep revising their incompetent models? How much more settling can their fantasies take?
      F. Funny how they all point to everyone else as proper role models.
      G. Their alarms always use the worst cases, which even the modelers admit are unrealistic.
      H. Earth’s climate has survived asteroid strikes, snowball earth, and massive volcano eruptions. It can survive puny man.

      1. I don’t agree that it’s possible to make a definitive statement about what models can and can’t predict about the past. It’s complicated and there is a lot of bias and uncertainty and the temperature differences are very small. When you’re measuring or predicting a small change and have a large uncertainty and many different models, it’s very hard to actually know whether your answer is right (or how wrong it is).

        That’s why this is essentially a religion for the general public. For the very few people who know how the climate models actually work, it’s an academic modeling exercise. In either case, policy makers should act with humility, because ultimately they don’t know what the results will be. That means respecting and valuing people’s lives and rights and choices here and now rather than acting with religious zeal to prevent a doomsday prophecy from coming true.

    2. I can live without AC, but no BBQ? NEVER!

      1. Lots of people can’t really live without AC and heat.

        If energy use is a sin, then environmentalism is a religion. And government is prohibited from establishing an official religion.

        If energy use isn’t a sin, then what is the objective test for that? If it acts in all ways like a religion, courts should protect our freedom related to it.

  3. Isn’t Mass v. EPA pretty much neutered by Texas vs. EPA until the EPA is rewritten, because you can’t reasonably regulate carbon using the current EPA’s statutory framework without blowing up the economy and quintupling the number of regulators they need to hire?

  4. Climate is an example of a complicated technical subject. The idea that know nothing lawyers can set national policy about it is an outrage.

  5. My question is why MA could sue here but TX couldn’t for election frayd?

    1. In part, because MA was suing the Feds while Texas was suing other states. Different rules apply.

      1. And in part because the EPA wanted to be sued. This case was an instance of “Sue and settle”, where an agency colludes with an outside group to be sued into doing something they wanted to do, but had no legal basis for. They deliberately lose the lawsuit so as to be ordered by the court to do what they’d wanted to do.

        1. The number of ways in which this is argument is stupid is matched only by the number of ways in which all of Brett Bellmore’s arguments are stupid.

          No, the EPA did not want to be sued. No, the agency didn’t collude with an outside group. No, it wasn’t something they wanted to do, or they would have done it. No, the EPA didn’t settle in the first place, so it couldn’t possibly be an instance of “sue and settle.” “Deliberately losing” is not “sue and settle” in the first place. (You can tell, because “lose” and “settle” are different things.) No, the EPA did not deliberately lose the lawsuit. For one thing, they won in the District Court. They won again at the D.C. Circuit. For another, “the agency” wasn’t doing the litigating; the DOJ was. Bush’s DOJ.

          1. Brett simply cannot handle that he’s generally on the losing side of things, so he assumes anyone who says so is acting in bad faith.

          2. So your counter-argument can be summed up as “no”, with zero support for the no other than repetition.

      2. In part, because MA was suing the Feds while Texas was suing other states. Different rules apply.

        While it’s true that different rules apply depending on who the defendant is, that’s not really the main answer to Dr. Ed’s question.

        First, Dr. Ed’s question is based on a faulty premise; the TX suit was not about “election fraud.” Only the Kooky Kraken Team of Powell and Wood have alleged fraud. The slightly saner lawyers have all eschewed that to avoid being sanctioned for making frivolous claims with no basis in fact.

        Second, the main reason is because Massachusetts was suing over something that affected Massachusetts’ interests. (I disagree with the SCOTUS’s decision, to be sure.) Texas was suing over something completely internal to PA/WI/GA/MI. Texas has no interest in a question of Pennsylvania law about how close to the ballot counters poll watchers can stand in Pennsylvania, and thus no standing to challenge it.

  6. So-called greenhouse gases aren’t even what keeps our atmosphere warm, never mind increased concentrations supposedly leading to catastrophe.

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