3 Takeaways - Harvard Law Professor, Richard Lazarus: The Century’s Biggest Environmental Law Case and What It Took to Win (#2)

Episode Date: July 31, 2020

Environmental lawyer and activist Richard Lazarus talks about The Paris Agreement and its legacy, his new book The Rule of Five, the current administration’s undoing of EPA acts, and offers a poignant reminder of the difference one person can make.

Welcome to the Three Takeaways podcast, which features short, memorable conversations with the world's best thinkers, business leaders, writers, politicians, scientists, and other newsmakers. Each episode ends with the three key takeaways that person has learned over their lives and their careers. And now your host and board member of schools at Harvard, Princeton, and Columbia, Lynn Thoman. Hi, everybody. It's Lynn Thoman. Welcome to another episode. Today, I'm delighted to be here with Richard Lazarus. He's a professor at Harvard Law School who has represented the United States state and local governments and environmental groups in the United States Supreme Court in 40 cases. Hanging on the wall of his Harvard Law School office, Professor Lazarus has a framed copy

of the Supreme Court's Massachusetts versus the Environmental Protection Agency ruling signed by Supreme Court Justice John Paul Stevens. That ruling, Massachusetts versus the EPA by the Supreme Court, has been called as significant to environmental law as Brown versus the Board of Education was to school desegregation. Brown versus the Board of Education established that segregation in public schools is unlawful as a matter of constitutional law. Today, we're going to get the inside story on that critical Supreme Court environmental ruling. We're also going to learn how one person made a difference

and the single most important thing we need to do now. Thank you, Richard, for being here today. I'm delighted, Lynn, to be here. Thanks so much. So what impact did winning the Supreme Court case, Massachusetts versus the Environmental Protection Agency, have? Well, I'll give you the short answer, then the longer answer. The short answer is it made possible the historic agreement in Paris in December 2015, when almost 200 nations of the world for the first time came together and established commitments to address in a really meaningful way, not a complete way, but a very meaningful way, the global issue of climate change. So it did that, which is extraordinary. But here's how it did it. In the Supreme Court in Massachusetts v. EPA, the court decided two things. The first thing

the court decided was that someone who alleged climate injury had the right to bring a claim in federal court for relief. That's called the right to bring an Article III case in the court, to have standing to bring a case in federal court. The Supreme Court had never decided that. That was huge. If the court had decided differently, the federal courts would have been closed off to people who claimed that they had been harmed by climate change. But the second part of the court's opinion was even more important. The court ruled that greenhouse gases are air pollutants within the meaning of the Clean Air Act. So what does that mean? That meant that the U.S. EPA, the Environmental Protection Agency, which had denied that authority under the Bush administration,

possessed the authority already to address climate change without the need for any further legislation from Congress. And as most people know, Congress doesn't do much anymore. It doesn't pass any significant laws. Congress has not passed any revisions to the Clean Air Act since 1990. That's 30 years ago. So when the court ruled the Clean Air Act already covered greenhouse gases, they were air pollutants. That then served as a basis for an enormous number of regulations promulgated during the Obama administration over eight years. The Obama administration came in in January 2007, and they basically went to town on Massachusetts reverse EPA. President Obama realized that you could not achieve an effective way to address climate change unless you had an international agreement.

And he also knew there was going to be no international agreement unless the United States acted first in a significant way to convince the rest of the world that the U.S. was finally serious about addressing climate change. He took Massachusetts for his CPA, and he did just that for eight years. And by December 2015, he convinced the rest of the world the U.S. was addressing the issue, and that led to Paris. So what does it take to win a case before the Supreme Court? Well, it takes some very good lawyering, a lot of stamina, a lot of resilience, and perhaps sometimes just some good luck. In this case, the story of Massachusetts v. EPA is just fascinating. And as you probably know, I just wrote a book on it which just came out called The Rule of Five, Making Climate History at the Supreme Court. In this case, actually, the story of the case begins in the early 1990s. The Supreme Court didn't decide the case until April of 2007. What happened in the

1990s, it's just this one guy, this one guy named Joe Mendelson. So Joe Mendelson goes to law school in the late 1980s, right after Dr. Hansen, one of the famous climate scientists of our time, testifies before Congress to say that greenhouse effect is here now. Global warming is happening now. That's why Joe Mendelsohn goes to law school. He's a second generation environmental lawyer. He's not thinking just about air pollution, water pollution, hazardous waste. He's thinking about the issue of a generation, climate change. He goes to law school and he hangs out his shingle because a public interest lawyer, a little teeny organization no one's ever heard of. In the beginning of the 1990s, he actually thinks something's going to happen because the Clinton administration has

come into power. The vice president is none other than Al Gore, who wrote the book on climate change, a book published in June of 1992 called Earth in the Balance, which says climate change is sort of an existential threat, that it presents catastrophic consequences for the world. And Gore promises he will not compromise that issue politically. And Joe Mendelsohn watches for the next eight years as the Clinton administration compromises. And they don't. They don't do anything to reduce greenhouse gas emissions in the United States over those eight years. And year after year after year, this guy Joe Mendelsohn at this public interest group called the Center for Technology Assessment, he's getting fed up. He's getting tired. He's getting angry. And he says, I can't take this. So he drafts a petition in the late 1990s for EPA to try to force the Environmental Protection Agency to regulate greenhouse gases. He files it in 1999 over the objections of all the national

environmental groups who try to stop him at some points for doing it. They say, don't rock the boat. Don't give the Clinton administration a hard time. He files it. That petition he files in October 1999, that's the case that leads to the U.S. Supreme Court. He files with the EPA. The Clinton administration ignores it in its final years. The Bush administration denies it. They deny the petition saying greenhouse gases are not air pollutants. That then goes to the courts, and that leads to the Supreme Court decision. But along the way, this amazing personality, Joe Mendelsohn is the first. They lose the first round of the courts. Everyone wants to give up and stop. One attorney, I have about 100, says,

I want to take this further. He's under enormous pressure not to do it. He gets called by the head of one of the nation's most prominent national environmental groups, a wonderful person who says, don't do this. The future of the environmental movement is on your head if you take this case any further. This is bad strategy. He does anyway. They all join. They go in front of the United States Supreme Court, battles over their argument. They try to toss him out for doing the argument about a week before, and he does the argument, and they win. So the pathway from beginning to end is really fascinating, but it takes a lot of courage, a lot of resilience, and some damn good lawyering along the way. How has the EPA, which recently celebrated its 50-year anniversary, done in protecting the environment, protecting us, and combating climate change?

Well, you know, that's a really challenging question to ask. I'm a big fan of the federal government. I'm a big fan of career people who do public service in the federal government, including those in EPA. And I have no doubt that this nation owes a tremendous debt of gratitude to those public servants in EPA for the work they've done over the past 50 years. They've been whipsawed by the shifting winds of politics in the United States, which has often really hobbled their ability to do their job. It happened under the Nixon administration. It happened under the Reagan administration.

It happened under the Bush 1 administration. And it's happening right now to an order of magnitude greater under the Trump administration. So they've not been fully successful. There's no question about it. But I put the fault more at the feet of the American people. And they're the ones who've had cold feet at times. They're the ones who've elected national leaders in Congress and the executive branch who have sharply limited the ability of EPA to do its job. I think if you take a snapshot view for air pollution and water pollution of the United States in 1970 to today,

we've done a lot. We've achieved an enormous amount of progress. And we can thank EPA and the states and local governments for doing that. On climate change, though, on that one, we probably get a failing grade. What do you see as the major accomplishments? I think the major accomplishments are classic air pollution. Classic air pollution in the United States is dramatically down. Lead is way down. Particulate pollution is significantly down. Nitrogen oxide, sulfur oxides. You look at the sort of traditional classic ambient air pollutants that the Clean Air Act was directed to in 1970. They are significantly down

in the United States at the same time that our economy is much greater than it was in 1970. That doesn't happen without effective laws. And if you want to see what happens if you try to have that kind of growth without those kind of laws, look to other parts of the world. Look to Eastern Europe. Look to China. If you don't couple that growth with effective environmental protection laws, you can have environmental disaster. We don't have that. We've actually eliminated a lot of the hazardous waste sites in the United States.

Our water is cleaner than it's been before. So we've accomplished a lot. Do we have issues? Absolutely. Do we have increasing problems with drinking water? Yes. Are our poorer communities, communities of color in the United States, do they have their needs addressed as much as other parts of the United States? No, they don't. So there are significant gaps. There are problems. But the overall picture is pretty good. But that really big exception, and that is climate change. On climate change, the United States is more responsible for the carbon dioxide of the greenhouse gas atmosphere than any other nation in the world, not on an annual basis, but on a historic and cumulative

basis. We put more up there than anybody else. We're responsible, and we've done relatively little compared to other nations to reduce our emissions. Can you talk a bit more about what President Obama did with respect to the environment as well as climate change? Yeah, the Obama administration had two just terrific administrators of EPA. It began with Lisa Jackson and then Gina McCarthy. And Gina McCarthy is just a pistol, just extraordinary. And Obama, I think, probably did more than any other president has ever done. He came in at the beginning. He took it very seriously, the environmental issues.

He gave an address one week after taking office, January 26, 2009. He gave an address on climate, referred to the catastrophe that threatened the world if we didn't address these issues. And he did an enormous amount of very progressive lawmaking at EPA in terms of addressing water pollution, sort of drinking water issues, hazardous waste, air pollution, interstate air pollution, climate change, oil and gas regulation, public land management, endangered species controls. Not perfect, but really just an enormous amount of very progressive, thoughtful lawmaking, also somewhat balanced and pragmatic in some ways, done by the US EPA and done by the US Department of the Interior, which really handles the public lands of the United States. And he did it from day one until the very end. Again, they're not everything perfect, but certainly better than anyone had done.

And it was a race. It's amazing to see how many laws and regulations he enacted. I should add, he did it all without any help from Congress. So this all had to be done by executive branch rulemaking and executive orders. Congress, he tried to get Congress to pass a major climate legislation in 2009, 2010. They didn't do it. He gave up and did the only thing he could do, which is use it by executive branch action alone. So it was quite a transformative time for the United States and a pretty hopeful time. What's great about executive branch orders is that they can be enacted without Congress, but the disadvantage is that they can be changed or completely removed. Can you talk about what's happened now under the Trump administration?

Yeah, that's exactly right. The strength of them is the president doesn't need Congress's assistance, and the weakness of them is the president can change them without the need for Congress assistance. What's happened under the Trump administration is really extraordinary. I've studied environmental law basically almost since 1970. I've been sort of a chronicler and follower of it. And we've often had these whipsaws where one administration does something, Basically, almost since 1970, I've been sort of a chronicler and follow over. And we've often had these whipsaws where one administration does something, another administration tries to take it away, but it's never really been very successful or wholesale.

This administration under Trump, a group of us got together in December 2016, right after the Trump election. We sat around a room at Harvard Law School. We had people from congressional staff. We had people from the state attorney general's office. We had people, academics. We had people from public industry. And we sat around and looked at all the accomplishments of the Obama administration and said, what

would a Trump administration target? What are all the targets out there that he might try to target and unravel? And what's really been extraordinary is they've targeted every single one. They've left nothing unchallenged. And so they've done it all, air pollution, water pollution, coal ash control, public land management, coal development, fracking, you name it. They have sought to undo every single one of the Obama initiatives. I should say, that's no small task. That's the bad news. The good news from my perspective is this. Although a president can do things, can undo things a prior president has done, unless the president has done it just by executive order. He got agencies, EPA, Interior, and others to go through notice and comment rulemaking based upon extensive factual and scientific records to support these new rules, these new regulations. To undo that, you actually have to replicate that process.

You have to go through your own notice and comment rulemaking. You have to explain why the science the agency concluded before was wrong. You have to show why the facts they found before were wrong. You show why their interpretation of the statutes, like the Clean Act, the Clean Water Act, the Service-Minded Control Reclamation Act, why they were wrong. If you can't show why they're wrong, you can't change it. So you don't need Congress to do it, but you still have to have what's called non-arbitrary and capricious rulemaking. And the one thing this administration is not very good at is thoughtful, deliberative decision-making. It's a very impulsive group. They do things quickly.

They do things based on instinct, often ordered by high-ups in the White House or the agencies. They don't like to listen to their career experts. These agencies are full of expert scientists, experts economists, expert lawyers. They don't trust them. They view them as a deep state. So they've made a lot of sloppy decisions in trying to undo. They've made more sloppy decisions than they had to have made to undo what Obama did. As a result, they've lost a lot of cases in court. I mean, an enormous number of cases in court. They just lost a big case earlier this week involving the Dakota Access Pipeline, a major natural gas pipeline. The district court judge said, you violated the National Environmental Policy Act. Your record doesn't show you adequately consider the adverse environmental effects of what you

are trying to do here. They've done that over and over again. They violated procedural rules. They violated fact-finding requirements. So they've lost a lot. As a result, they haven't really succeeded yet in undoing most of the Obama regulations. Now, that doesn't mean the last four years are costless. because if a new administration comes in, they still have to remake those things and redo those things and put everything, put Humpty Dumpty back together again. So we'll have lost time. And most importantly, we'll have lost four years when it comes to climate change. And when it comes to climate change in particular, time is not costless, just the opposite. Time is very costly. The longer it takes you to get those greenhouse gas emissions

out of the atmosphere, the exponentially harder it is to do it. And at some point, it actually literally becomes too late. So this has been a very costly four years, even though the Trump administration's efforts to roll back essentially everything the Obama administration did have basically failed so far. Another four years, I can't say the same would happen.

When you say greenhouse gas emissions last a long time, can you elaborate on what you mean? Sure. Yeah, this is what makes climate change, it's just such a hard issue because the sort of science of climate change is so different than your classic air-water pollution issue. So normally, you put air pollutants up in the atmosphere, they do their harm, they come right down. They're only there for a brief period of time. Same thing for water pollution. The temporal dimensions are fairly limited, and the spatial dimensions are fairly limited. They go up a little bit of space, they come right down. They go to the water, they cause harm, but they dissipate fairly quickly over

time. Greenhouse gases don't work that way. If you put up carbon dioxide, which is our greatest greenhouse gas by volume, you put it up in the atmosphere, it's not there for one year. It's not there for two years. It's not there for 10 years. It's not there for 20 years. It's not there for 50 years. It could be there for 100 years or more. So what does that mean? It means what goes up doesn't come down. So over time, we have kept putting more and more greenhouse gases in the atmosphere, causing climate change, and every year builds upon the year before. That's why there's so much in the atmosphere. It doesn't come down. And you can't actually bring down what's in the atmosphere unless the amount you put up is less than the amount that

naturally comes out. We could dramatically decrease our greenhouse gas emissions right now, and we'd still be putting more up than naturally dissipates in the atmosphere. So the amount would still be going up. The challenge of actually having what I call sort of this, you think the atmosphere is a bathtub, you have to have the amount coming in through your faucet to be less than the amount that drains out to actually have the amount of the bathtub actually go down over time. We are so far removed from that, that it's going to keep going up until we can dramatically bring it down. And on top of it, we've actually eliminated some of the natural sinks that bring it out of the atmosphere, like trees. Trees, when you destroy trees, you eliminate a sink that takes carbon

dioxide out of the atmosphere. So that's what I mean by going up. We have right now in the atmosphere, carbon dioxide, other greenhouse gas emissions, we put up 100, 150 years ago. And so the longer we wait to reduce our emissions, the sort of deeper and deeper that bathtub is and the harder it is to actually ever bring it down in a time before we have potentially catastrophic change. You've talked about what presidents have done. You've talked about what the EPA has accomplished. You've said that Congress really hasn't done much. The other players are the states. What are the states doing and how do they work with the federal government?

Lynn, that's just a great question and a very perceptive one. This is a fascinating part of environmental law right now. And that is a lot of environmentalists and a lot of people approached environmental law in the 1970s thinking of the states as weak. And that's why we needed a strong national government, because the states couldn't be trusted. They'd be more likely captured by industry. So we need a strong mandate from the federal government. A lot of the environmental groups, environmentalists, sort of came from the civil rights movement of the 1960s. And they, in the civil rights world, were naturally suspicious of states.

They thought the solutions had to be national. And that's sort of been the model that many people have, framework people have thought about for decades. But now we realize that's not true. The fact is that the states are often the source of ingenuity, the source of creativity, and the source of inspiration. If you have several states which are out there and show that it can work, show that you can actually regulate stringently and have a good economy too, the rest of the world can learn from it. California has been a leader in that respect from the outset. In many respects, the Clean Air Act would not have passed in 1970 if California hadn't been out there pushing in the 1960s. Right now, as the federal government has

retreated under the Trump administration, many states have stepped up. Many states have stepped up and they're filling the gap. They're filling the gap with tough laws. They're actually doing a lot of the things the Obama administration wanted to have happen by mandate. They're filling the gap with tough laws. They're actually doing a lot of the things the Obama administration wanted to have happen by mandate. They're doing it voluntarily. They're showing it can work. So that has been an important mitigator in terms of the impact of the national government retreating from addressing climate is a lot of our states and a lot of our major cities

are out there taking climate seriously. A lot of our businesses are taking climate seriously. They don't fictionalize science. They know they have to deal with real science. So states, major cities, local governments, they stepped up to the plate and they've specifically mitigated the impact of the Trump rollbacks. And I think they've just established a model for how things can happen once there is a national government that cares about these issues back in office. COVID-19 has reduced the number of people traveling by car and by air. It's also reduced factories, manufacturing. What is all this? How much of an impact is this all having on the environment in

the short term? And do you see potential for any long-term effects? Well, I want somebody who has really resisted the idea. I've heard some environmentalists say this. I think it's a huge mistake. They'll say the silver lining of COVID-19 is that our economic activity has dramatically increased, has been good for the environment and for climate. I say no. The last thing one needs to think is that there's a silver lining to COVID-19. There is no silver lining to it.

This is a global pandemic. People are dying. People are becoming seriously ill. And the idea that to have a good environment and to address climate, we need to shut down the world's economy. That's exactly the wrong lesson to take away from this. What we need to do is show that we can address the climate issue. We can address people's needs. People can work and have jobs and have a good environment. If this becomes a choice between climate and shutting down the world's economy, we're going to lose that debate. So I think it's wrong to think of this as sort of any positive

lessons. Instead, I think we have to worry that there may be a drive after COVID-19 to push so hard on economic growth that people will ignore the need to accompany that with environmental protection. So I think there's a concern I have coming out of this. things that do worry me about COVID-19 is I've heard, for instance, in Beijing, vehicular miles traveled have dramatically increased over what they were a year ago. Once COVID-19 receded, and that's because no one wants to go in mass transit. No one wants to carpool. Everyone wants to drive their own cars. People want bigger cars than they wanted before. They want more comfort in their cars. People don't want to live in cities. They want to live out more out in the suburbs. So we may actually face some more challenges because of the global pandemic. Again, no silver lining here. Lessons to be learned, absolutely. And that is important to demonstrate to people,

you can have environmental protection, you can have climate change being addressed without an economic shutdown, just as the Obama administration was doing. And lessons to be learned that you cannot address a global threat without global cooperation. That has certainly been a major lesson we learned from COVID-19, that no one state, no one city, no one nation can do this alone. That is true for a virus like COVID-19. It's true for climate change as well. Global threats require global cooperation. I'm hoping there we can have a return to some semblance of normalcy. What should we be doing now for the environment and climate change? Well, I think what we need to do is elect people to office who care about these issues and take

them seriously. That's the single most important thing I think could be done in a near term of the United States there are always things people can do in a way they lead their own lives to lead their lives in a way which reduces all of our own carbon footprints reduce how we use electricity I think people can find

you can reduce electricity use without any real change in quality of life at all it doesn't require all going into a cave, it doesn't require can find you can reduce electricity use without any real change in quality of life at all it doesn't require all going into a cave it doesn't require never turn on your air conditioning never turn on your heat it just we have so much waste in this country we have a lot of low-hanging fruit we can dramatically reduce our greenhouse gas emissions without much of a change at all in the quality of lifestyle that we should should do. But in the near term, the single most important thing that individual Americans can do is vote.

In the Massachusetts v. EPA case decided in 2007, the lawyers in that case made history. They made history through great lawyering, great work, great strategy, and a lot of personal courage along the way. And they ultimately did it by the votes of just five justices on the Supreme Court. But to actually ultimately address the climate issue, it takes more than the votes of five justices. It takes votes, but it takes votes of individual people. In the United States, that's how we change history. One of the arguments that sometimes I hear my students make, which is my most unfavorite argument of all, they say somebody else whose views they oppose is on the wrong side of history.

I hate that argument because I think it assumes history is on your side, and all you need to do is sit back passively, and it will come your way. That's a losing argument. If you want to have history come your way, you fight for it. You fight for it and you make history. If you want the promise of mass versus EPA to be realized and address serious climate change, you fight for it. If you want the promise of Brown v. Board of Education in 1954 to be realized, it's not going to happen on its own by the votes of justices. You have to fight for it.

And the way we make laws and transform our laws in the United States is not just through Supreme Court opinions. They're a very important part. They're catalysts. They're triggers. But long-term transformative change, which is what's necessary here to address the climate issue, that happens at the ballot box in the United States. There are no shortcuts.

It doesn't happen at the courthouse. So what people need to do right now is go out and vote. Go out and vote for people and leaders. This is for national office, for statewide office, for local office, who take the climate change issue seriously. The consensus is there. The science is clear. And there's still time to address it. So that's what people can do. Right now, nothing more important than making sure we elect leaders, elected leaders in the United States this November who will address this issue meaningfully, aggressively, and consistent with science. Before we come to our last question, which is the three takeaways from today's conversation, is there anything else you'd like to say that you haven't already touched upon?

I guess one thing I'd like to say is I'm still hopeful. The last four years of the Trump administration have been tough years for this country. They've been tough years on a lot of different dimensions. The environment is obviously one of them. Racial justice we've seen is yet another. We have a country which is potentially at loggerheads and deeply polarized. To actually address all these issues, we need to come together. But I'm hopeful it can be done uh i think this is a country which ultimately uh has a lot of goodness in it i i can't say

i understand regardless of politics how anyone can embrace donald trump because i think he's someone who has no morality and no spirituality to him And I think our country does have innate goodness to it. But we need to rediscover it. And I think we've lost our moorings a bit over the last few years. What are the three most important points, the three key takeaways? I think the three key takeaways are individuals matter. One person can make a difference, even on an issue as significant as climate change. There's no bigger issue. There's no more important issue, at least in the environment, facing the United States of the world right now than climate change. And at Massachusetts University of the Pacific, just one person, sometimes one at a time,

made a huge, enormous difference. So don't underestimate what you can accomplish. Two, you know, being thoughtful and strategic, being careful, knowing when to reach big and when to reach small is also incredibly important in massachusetts cpa the case that i love to talk about they the strategy there was to know when to go small and when they go big sometimes if you go big at the wrong time you lose everything but you go small you can win. And so it's being strategic, being careful, being thoughtful, and thinking about how other people view an issue and not

just thinking you can browbeat them to persuade them. You have to think about the things they care about to convince them. The last thing, which is the lesson I was talking about a moment ago, and that is the United States elections matter. There are no shortcuts to transformative law. A lot of people want the Constitution to do it or the Supreme Court to do it. You actually have to elect leaders in Congress, leaders to executive branch and governor's offices. That's how we make law in the United States. It's hard to make law that way. China is doing enormously positive things on many environmental issues because they don't have to worry about democracy. They could just do it. But that's not how we do things in the United States here. We have other competing values.

We've done a lot here, but we have to do it the way we do it best, which is through voting and through the ballot box. Richard, thank you so much for our conversation today. And thank you also for all that you have accomplished for the environment and for our country. Thank you, Lynn. It's really a pleasure to join you on the podcast thanks a lot if you enjoyed today's episode you can listen or subscribe for free on apple podcasts or wherever you listen if you would like to receive information on upcoming episodes be sure to sign up for our newsletter at 3takeaways.com or follow us on twitter instagram facebook and linkedin note

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