April 1, 2021

Presenting: Outside/In

by How to Save a Planet

Background show artwork for How to Save a Planet

It's one of the most important Supreme Court cases you may never have heard of: Massachusetts v. Environmental Protection Agency. The ruling held that the U.S. government could regulate greenhouse gases. Today we’re sharing the wild backstory of this critical Supreme Court case, from a podcast we love,“Outside/In,” from New Hampshire Public Radio. If you don’t believe a legal case in all its intimate details can be riveting, take a listen.

And be sure to check out all the other great episodes from Outside/In.

We'll be back next week with a new episode of How to Save a Planet. In the meantime, check out our Calls to Action archive here for all of the actions we've recommended on the show. Send us your ideas or feedback with our Listener Mail Form. Sign up for our newsletter here. And follow us on Twitter and Instagram.

How to Save a Planet is reported and produced by Kendra Pierre-Louis, Rachel Waldholz and Anna Ladd. Our intern is Ayo Oti. Our senior producer is Lauren Silverman. Our editor is Caitlin Kenney. Sound design and mixing by Peter Leonard with original music from Emma Munger.

Where to Listen

Transcript

Dr. Ayana Elizabeth Johnson: Welcome to How to Save a Planet. I'm Dr. Ayana Elizabeth Johnson.

 

Alex Blumberg: And I'm Alex Blumberg. And this is the show where we talk about what we need to do to address climate change, and how to make those things happen.

Alex: You've been running around in climate circles much longer than I have.

 

Ayana: Since approximately 1998, when I started college as a major in environmental science and public policy.

 

Alex: Right. I'm a newbie, a dilettante, compared to you.

 

Ayana: Yeah. A new kid on the block. Wait, do you have, like, New Kid on the Block-level dance moves? Can you choreograph a boy band dance to the How to Save a Planet theme song?

 

Alex: I haven't told anybody on the team yet, but ...

 

Ayana: Oh, I'm so excited for whatever you're about to say.

 

Alex: Have you ever heard of a little dance called The Running Man? [laughs]

 

Ayana: [laughs] I'm really concerned that you're gonna pretend you invented it.

 

Alex: No! But I do know how to do it.

 

Ayana: Wait, is this, like, your secret superpower that you can use to help save the climate? Are you good at it?

 

Alex: No. Do you want me to do it though? Ready? I can do it on Zoom if you want.

 

Ayana: Do I want? Yes, I want.

 

Alex: Okay, here we go.

 

Ayana: Are we recording this, Lauren?

 

Alex: I'm not gonna look at you, though, because it'll be too embarrassing.

 

[ZOOM AUDIO: Recording in progress.]

 

Ayana: [laughs] This meeting is being recorded.

 

Alex: If somebody could hum "Paid In Full" for me, please.

 

Ayana: I'm so ready. This is so good! [laughs] For those who didn't have the pleasure of seeing that, I should tell you that he started by giving us a side view of the running man, and then he actually, like, rotated it in a circle, and there was some, like, jump rope-style arm moves involved. Very good.

 

Alex: Straight out of 1991. Now that I did that, I'm going to, like, spin this into, like, an intro for the show.

 

Ayana: Perfect.

 

Alex: Because ...

 

Ayana: Because you're an audio professional. Here we go.

 

Alex: That's right, on the fly. In this episode, we're also going back in time.

 

Ayana: Mm-hmm.

 

Alex: Not quite as far back as I went with The Running Man.

 

Ayana: I see what you did here.

 

Alex: We're going back to the mid-2000s, and to this relatively unknown Supreme Court case.

 

Ayana: Unless you're like a climate dork.

 

Alex: Unless you're a climate dork, in which case it's a case that everybody knows.

 

Ayana: Yep. And it's a case that's become sort of shorthand for how we think about who has the authority to deal with climate change within the federal government, right? Like, what power does the EPA even really have?

 

Alex: And it has been a case with, like, pretty profound consequences for sort of like the climate policy in the United States for the last couple of decades. And the story of how this case came to be is gripping, actually.

 

Ayana: It's wild. You know, like, as a college nerd majoring in environmental science and public policy, I certainly heard about this case as something—but I also, like, wasn't a great student at the time, so it didn't, like, stick. I maybe didn't, like, read the full decision.

 

Alex: Right.

 

Ayana: But, you know, you kind of like hear it all the time: Massachusetts v. EPA, Massachusetts v. EPA, when people are referring to the Environmental Protection Agency and basically regulating greenhouse gases or not. So yeah, but I had no idea the backstory was this wild. It's like truly bananas.

 

Alex: So we are going to be bringing you the backstory. And when I say "we," I mean, literally people that are not us. I mean ...

 

Ayana: Not the How to Save a Planet team.

 

Alex: This is an episode from a podcast called Outside/In, which is a great podcast out of New Hampshire Public Radio and the host, Sam Evans-Brown is gonna be sharing the incredible, pretty riveting story of Massachusetts versus EPA on today's episode. And it's coming up right after this break.

 

Ayana: If you don't believe a Supreme Court case in its intimate details can be riveting, think again.

***

 

Sam Evans-Brown: Where to start? When does any history start?

 

[ARCHIVE CLIP, Richard Nixon: Clean air and clean water, the wise use of our land, the protection of wildlife and our natural beauty.]

 

Sam Evans-Brown: No, too early.

 

[ARCHIVE CLIP, George H.W. Bush: I want to call upon all of you to join me in enacting into a law a new Clean Air Act this year.]

 

Sam Evans-Brown: I don't think here, either.

 

[ARCHIVE CLIP, Al Gore: We came to Kyoto to find new ways to bridge our differences. The imperative here is to do what we promise rather than to promise what we cannot do.]

 

Sam Evans-Brown: Maybe ...

 

[ARCHIVE CLIP, George W. Bush: We will require all power plants to meet clean-air standards in order to reduce emissions of sulfur dioxide, nitrogen dioxide, mercury and carbon binoxide—carbon dioxide within a reasonable period of time.]

 

Sam Evans-Brown: Let's start here. It's as good a place as any when you're trying to pick a starting point for a cascade of falling dominoes. This was the largely-forgotten moment in the 2000 presidential campaign that George W. Bush said he would regulate greenhouse gas emissions. You might think of Al Gore as the original "global warming" politician, but in 2000, it actually seemed like it would be his rival, George W. Bush, who would enact the first meaningful regulations of greenhouse gas emissions.

 

Richard Lazarus: Because it was George Bush and not Al Gore in the 2000 election. It was Bush who campaigned with the promise that he'd regulate greenhouse emissions from the nation's power plants. He said that in September of 2000. He went to the left of Al Gore on the issue.

 

Sam Evans-Brown: This is Richard Lazarus, a law professor at Harvard specializing in environmental law. When George W. Bush won, he signaled to the world just how seriously he was going to take climate change. And he did that by appointing a woman named Christine Todd Whitman as head of the Environmental Protection Agency.

 

[ARCHIVE CLIP, George W. Bush: She is a strong person. She is plenty capable of taking on this difficult but important assignment.]

 

Sam Evans-Brown: She was governor of New Jersey, and a rising star in the Republican Party.

 

[ARCHIVE CLIP, Christine Todd Whitman: Mr. President, I am honored to be asked to serve as the administrator of the Environmental Protection Agency]

 

Richard Lazarus: There's been no one before or since of the national political stature or clout made head of EPA. No one more than Christine Todd Whitman. She was presidential timber, she was a household name in the United States back then.

 

[ARCHIVE CLIP, Christine Todd Whitman: Teddy Roosevelt, our first conservationist president, once said, "I recognize the right and the duty of this generation to develop and use the natural resources of our land. But I do not recognize the right to waste them for the generations that come after us.]

 

Richard Lazarus: Most people who were watching this—including environmentalists—thought the Bush administration was gonna be sort of the hero on the climate issue.

 

Sam Evans-Brown: While the EPA isn't usually a jumping off point for the presidency as far as cabinet positions go, if it were going to be, being the Republican who spearheaded the nation's response to climate change would be a very visible, very politically shrewd move.

 

[ARCHIVE CLIP, Christine Todd Whitman: I have never underestimated the importance of environmental protection, just as I have never overestimated the ease in achieving it.]

 

Jeff Holmstead: Governor Whitman had been assured by the White House that yes, that was part of her mandate.

 

Sam Evans-Brown: This is Jeff Holmstead. He worked in George W. Bush's EPA. Christine Todd Whitman was Jeff's boss, but Jeff was in charge of the branch of the EPA that would have to figure this all out, how to make Bush the hero on the climate issue.

 

[ARCHIVE CLIP, television announcer: Live from Washington, Crossfire.]

 

Sam Evans-Brown: One of the first orders of business for Christine Todd Whitman, just five weeks after inauguration, was a trip to Italy for international climate talks. And before she left, she went on TV.

 

[ARCHIVE CLIP, host: Governor, tonight as we sit here, the environmental conservatives are up in arms.]

 

Jeff Holmstead: People in the White House were aware of what the president had said, and so she felt like when she went on Crossfire that she was not going to be getting crosswise with the administration.

 

[ARCHIVE CLIP, Christine Todd Whitman: ... that he has also been very clear that the science is good on global warming. It does exist. There is a real problem that we as a world face from global warming, and to the extent that introducing CO2 to the discussion is going to have an impact on global warming, that's an important step to take.]

 

Jeff Holmstead: In terms of whether it was the appearance on Crossfire that created the stir, I think it had actually been started before then. You certainly had people in industry who understood what a big deal this was, and how potentially problematic it could be from an economic perspective. And so I think there had been lobbying going on for months before that. But I do think that sort of that all came to a head.

 

Sam Evans-Brown: In response to lobbying from fossil fuel-related industries, and to members of Congress from the states where those industries were particularly powerful, the Bush administration crafted a letter. They never consulted Christine Todd Whitman, the rising Republican star who signed on to tackle climate change. And in this letter, they completely disavowed Bush's campaign pledge on greenhouse gases.

 

[ARCHIVE CLIP, Christine Todd Whitman: And it was a big reaction. It was a big reaction, it was a very big reaction. It was a British paper I think that said with one stroke of a pen the President has determined that there are more important things in the world than the rest of the world, basically. That the United States is more important.]

 

Sam Evans-Brown: That's Christine Todd Whitman herself. She declined to be interviewed for this story, but back in 2007, she talked to Frontline.

 

[ARCHIVE CLIP, Christine Todd Whitman: The way it happened was the equivalent to flipping the bird, frankly, to the rest of the world on an issue about which they felt so deeply.]

 

Sam Evans-Brown: This flip essentially ended Christine Todd Whitman's national political career. The Bush administration completely pulled the rug out from under her. They let her go on TV and say one thing, and then while she was in Europe, without consulting her, they did the exact opposite. She left the office after a couple of years, after repeatedly coming into conflict with the White House. There was no more buzz about her as a possible presidential candidate.

 

[ARCHIVE CLIP, Christine Todd Whitman: I have never underestimated the importance of environmental protection.]

 

Sam Evans-Brown: It's so hard to say when any history starts. Which domino was this decision? Was it the first? Was it just another that fell? At the very least, it's a prologue to a causal chain which once seemed like it would be one of the most important in the history of the planet. And seen in a certain light, it may still be.

 

Janet McCabe: I mean it was like, you couldn't write this in Hollywood.

 

Jim Milkey: I faced enormous pressure to throw in the towel.

 

Jeff Holmstead: I don't think we will know the true legacy for years into the future.

 

Jim Milkey: Telling me the future of the environmental movement was on my head.

 

Lisa Heinzerling: It's not a position of respect that they're taking, it's a position of intransigence.

 

Janet McCabe: So then once it was stayed—boom. Everything stopped.

 

Justin Schwab: The Supreme Court does not hand out cert like candy, but it's entirely reasonable to expect that these issues will come before it for a fifth, and potentially final statement in this saga.

 

Sam Evans-Brown: Today on the show, we're bringing you inside what may be the most important environmental Supreme Court decision in history. It's a story about trying to confront one of the greatest challenges of the 21st century, with one of the most celebrated laws of the 20th century. As such, ultimately, it's a story of the power—and the limits—of the law.

 

Sam Evans-Brown: This story all starts with a little piece of legislation called the Clean Air Act.

 

Ann Carlson: Okay, we are—I'm recording.

 

Sam Evans-Brown: That's Ann Carlson, a scholar of the Clean Air Act at the UCLA School of Law. She wrote a book ...

 

Ann Carlson: Called Lessons from the Clean Air Act.

 

Sam Evans-Brown: The Clean Air Act was first passed in the '60s, but it didn't really become what it is today until it was amended in 1970. Ann says those amendments were a sea-change. They were the first time that public health was put first, ahead of the profit of regulated industries. As a law, it's remarkable for a couple of reasons.

 

Ann Carlson: It's very flexible, but it's also very stringent at the same time.

 

Sam Evans-Brown: It was written at a time when America was starting to get a little freaked out by how much we could affect the environment: smog, industrial fumes, sulfur. These invisible pollutants were becoming more and more visible.

 

Ann Carlson: In 1970, the air quality around the country was terrible. It's hard to describe how bad it was, especially in Los Angeles. But I grew up in Los Angeles, so I was 10 years old in 1970. And for two-thirds of the year, we used to have air quality that was so bad that we were supposed to stay indoors.

 

Sam Evans-Brown: And the people who crafted the law, they wanted to go big. They didn't want to handcuff future generations. They didn't know what they didn't know.

 

Ann Carlson: It said basically you need to regulate any pollutant that endangers public health and welfare, and that is really common. And it was up to EPA to figure out what those pollutants were. So then the Act had to define what is a pollutant. And so it defines it really, really broadly.

 

Sam Evans-Brown: Under the Clean Air Act, a pollutant is defined as "Anything that is a danger to human health and welfare." Broad, right? Which brings us to the first big legal question of this story: are greenhouse gasses like CO2 pollutants? From our perspective in 2020, it might seem like the answer to this is an obvious "yes." But legally, this is a debate that had been raging for years before George W. Bush ever had to weigh in on it. I mean, CO2 is a substance we exhale every minute of the day. It's a fundamental part of the composition of our atmosphere. In fact, during the Clinton years, this had been the subject of a high-profile exchange between then GOP House Majority Whip Tom DeLay and Clinton's EPA administrator, Carol Browner.

 

Ann Carlson: They're in a hearing, and Tom DeLay essentially asks Carol Browner if the EPA has the authority to regulate greenhouse gas emissions. I think he's expecting her to say no. And she says yes. And she turns to her counsel and says, "You know, we'll produce a memo on that."

 

Sam Evans-Brown: This memo represented a tantalizing possibility, a plan B. If Congress wasn't willing to pass a specific climate-change law, maybe there was a workaround. Maybe the executive branch could just do it all on their own. And more to the point, maybe they had to, because there's another historic feature of the Clean Air Act.

 

Ann Carlson: Congress also says we're not just gonna rely on the Environmental Protection Agency, we're also gonna allow citizens to sue if the Environmental Protection Agency isn't doing its job.

 

Sam Evans-Brown: It was actually the first law to explicitly include a citizen's right to sue.

 

Ann Carlson: And that's actually one of the ways that we get to Massachusetts v. EPA.

 

Sam Evans-Brown: Massachusetts v. EPA. The author of that memo, now a law professor at the University of Virginia, later wrote, "I am not suggesting this is Brown v. Board of Education for the environment, but it may be as close as we will come."

 

Sam Evans-Brown: I started this story with one row of dominoes, one tumbling column of tiles, the story of the Bush administration dramatically pulling the rug from underneath Christine Todd Whitman. But there's an alternate, earlier, parallel place that we might have started this story. And it starts with that memo, written under the Clinton Administration. While Clinton's EPA had said yes, greenhouse gases are pollution under The Clean Air Act, they hadn't done anything about it. For environmentalists, this was really frustrating. At the time, Congress was in the control of Republicans, so passing a new climate change bill was a stretch. But over in the executive branch, they had Al Gore as second in command, supposedly this champion for the global warming issue. And then they had a legal opinion that said we already have the authority to regulate greenhouse gases. We don't need the legislative branch. And yet, no one was taking action.

 

Joe Mendelson: The Environmental Protection Agency was looking at traditional pollutants, but whenever you mentioned greenhouse gases, and regulating those from the tailpipe of a vehicle, the EPA kind of avoided the subject.

 

Sam Evans-Brown: Joe Mendelson is now senior counsel for Tesla, but once upon a time he was working for a tiny DC-based environmental non-profit called the Center for Technology Assessment. While the big environmental groups—the National Resources Defense Council, the Environmental Defense Fund, the Sierra Club—didn't want to make trouble, because they wanted to help Al Gore win the 2000 election, Joe and his organization wanted to see progress.

 

Joe Mendelson: If everyone believes the authority exists, but no one's willing to take the legal steps to actually implement that authority and actually use it, then what good is it?

 

Sam Evans-Brown: So he tried to push them. He filed a petition asking the EPA to regulate carbon emissions from the tailpipes of cars. It wasn't a citizen's lawsuit yet, but it was the beginnings of one. At the time, his daughters were one and three years old.

 

Joe Mendelson: Raising them as very little children, I would sometimes be in their bedroom in a rocking chair either trying to put them to bed and sit with them and kind of read over legal work, including this petition. So it's—yeah, in some ways the third child that was born at the time.

 

Sam Evans-Brown: At first, this seemed like this was going to work. The Clinton administration called Joe in for a meeting, and told him they were going to use this threat of a lawsuit as a launchpad for their own plans on greenhouse gases. But then Bush was inaugurated president, and the petition was left in limbo. Now put a pin in Joe Mendelson laboring in obscurity in his nursery. Let's go back to where we did start our story.

 

[ARCHIVE CLIP, George W. Bush: She is plenty capable of taking on this difficult but important assignment.]

 

Sam Evans-Brown: When the Bush administration dramatically cut the legs out from under its high-profile pick to run the EPA, New Jersey governor Christine Todd Whitman.

 

[ARCHIVE CLIP, Christine Todd Whitman: The way it happened was the equivalent to flipping the bird, frankly.]

 

Sam Evans-Brown: We started there because it was that decision that got Jim Milkey's attention.

 

Jim Milkey: It was a fairly dramatic moment, because it became clear at that point that the federal government—at least voluntarily—was simply not going to do anything and was taking itself out of the game.

 

Sam Evans-Brown: While today he's a judge on the Massachusetts Court of Appeals, back in the year 2001, Jim Milkey was taking a year off as a lawyer with the environmental department of the Massachusetts Attorney General's office. He was in Denmark with his family, gaining a very European perspective on climate change.

 

Jim Milkey: I did make a decision that when I came back, which was July of 2001, I would do everything in my power to try to carve out a state role in this area.

 

Sam Evans-Brown: How could a little state like Massachusetts take on a global challenge like climate change? The answer is litigation, to force the federal government to take action.

 

Jim Milkey: Our job was to sue people, and to defend state officials when they got sued. There's an old expression that if your only tool is a hammer, every problem starts to look like a nail. And we had to develop our nail and our hammer.

 

Sam Evans-Brown: Milkey and a small crew of lawyers from other like-minded states got to work crafting their own legal argument to force the Bush Administration to act on climate. In the meantime, entirely separately, Joe Mendelson had sued to demand a response to his petition demanding regulation of greenhouse gases from cars, and had been told yes, we'll give you your response.

 

Joe Mendelson: And I remember walking through a snowstorm to get some chocolate milk for our kids when David Bookbinder and I were on a call with the EPA saying, "Okay, here's what the settlement's going to look like."

 

Sam Evans-Brown: In response, the EPA put out a document, again disavowing any federal role in regulating CO2, and it had a whole host of explanations for why. It said the science of climate change was still uncertain. It said the Department of Transportation already regulated fuel economy standards. It said if it stepped in it might mess up ongoing international climate talks. It said it didn't have the authority to use the Clean Air Act to regulate greenhouse gas emissions, and even if it did, the Clean Air Act didn't say it had to regulate pollution, only that it could. In all, there were seven reasons why not. In short, they threw everything and the kitchen sink at Joe's petition. And this is where Jim Milkey, who had a hammer, found his nail.

 

Sam Evans-Brown: Jim and Joe decided to join forces, to combine their hithertofore separate efforts into one. It is here that our two rows of dominoes merge into one.

 

Jim Milkey: We anticipated what their precise response was going to be.

 

Sam Evans-Brown: So as soon as the EPA issued their reply ...

 

Jim Milkey: And I believe it was August 28, 2003.

 

Sam Evans-Brown: Joe and Jim were ready.

 

Jim Milkey: We were able to go to the other states and say, "This is what we are doing. Do you want to join us?"

 

Sam Evans-Brown: All in all, 12 states and 30 environmental groups—including Joe Mendelson's—all joined together on one case. Which, because Jim filed first, was called.

 

[ARCHIVE CLIP: Massachusetts v. EPA.]

 

Sam Evans-Brown: Massachusetts v. EPA. The lawsuit demanded the EPA recognize excessive carbon dioxide emissions as pollution. It was based on the Clean Air Act which, written in 1970, never really contemplated a problem so wicked as climate change, but which had this very flexible definition of pollution: anything that endangers human health or welfare. Based on that definition, and on the US government's own climate science, it argued that CO2 must be considered pollution. What began as a document written alone in Joe Mendelson's daughter's nursery, grew into a jangly, somewhat dysfunctional coalition of 50 lawyers, from states and from environmental groups.

 

Jim Milkey: You say how do you manage that? Part of the answer is it cannot be managed.

 

Sam Evans-Brown: This wobbly team of environmental advocates struggled to get out of their own way.

 

Jim Milkey: We didn't always see eye to eye, nor did we always get along. And by far—and I mean this quite sincerely, the hardest part of the case was dealing with our own side. And—or as I like to say, of the seven or eight lawyers who were sort of at the core of this, many of them had personalities as difficult and egos as big as my own.

 

Richard Lazarus: They had very strong, vehement disagreements. And those disagreements became destructive, and almost unraveled their case.

 

Sam Evans-Brown: Harvard's Richard Lazarus again, whose book, The Rule of Five: Making Climate History at the Supreme Court is a detailed accounting of this lawsuit. The first step was the DC Circuit Court of Appeals. It took two years from when the case was announced to when they received their decision. Two years of herding 50 cats with egos, corralling them to agree on the structure and strategy of their briefs. And when the decision came out, they had lost.

 

Jim Milkey: When the DC Circuit ruled, it was in a sense neither a victory nor a defeat because the three-judge panel split in three different directions.

 

Sam Evans-Brown: And out of that split decision came a new risk: standing. The right of a plaintiff to bring a lawsuit.

 

Jim Milkey: The standing issues were quite serious.

 

Sam Evans-Brown: Standing, when it comes to the harms wrought by climate change is the second big legal question that this case would eventually decide. Traditionally, standing law ...

 

Jim Milkey: Demands immediate, particularized injury.

 

Sam Evans-Brown: Whoever brings a lawsuit—whether it's a person or a state—needs to prove that they are connected to and explicitly harmed by the action or lack of action challenged in the case. Essentially, they needed to prove global warming is bad, and prove that it was being made demonstrably worse by the EPA sitting on its hands, that every ton of carbon emitted was causing a little more and a little more and a little more harm. Compare that to what people perceived to be the nature of global warming.

 

Jim Milkey: Which is long term, incremental, hard to pinpoint to any particular place.

 

Sam Evans-Brown: In the mid-2000s, just 15 short years ago, for many, climate change was still perceived as a problem that was far off, with impacts happening 30, 50, 100 years hence. And before then, everything's just the same. As if a pot of water suddenly leaps from cold to boiling, and never gets hot enough to burn you in interim.

 

Jim Milkey: One judge thought we had standing. One of the three judges assumed we had standing, and ruled against us on other grounds. And the third judge said essentially, global warming is so pervasive, if it's true that no one has standing.

 

Sam Evans-Brown: If that one judge of the three were right, it would have long-lasting effects on the ability of anyone to bring a climate change lawsuit under the Clean Air Act. And the fact that that one judge had ruled based on standing and standing alone meant if they appealed, this question would be central once they reached the Supreme Court. There was a lot at stake.

 

Jim Milkey: I faced enormous pressure from the environmental groups to throw in the towel at that point. And the head of NRDC was calling me from New York, telling me things like the future of the environmental movement was on my head.

 

Sam Evans-Brown: Think about it. Their lawyers would have to stand up in front of the Supreme Court justices and make the case that the global warming is real, that the pervasive worldwide slow burn that are climate impacts are manifesting now, that states are being harmed now, and that you could blame the EPA for at least part of it. But what if they lost?

 

Sam Evans-Brown: Here's what could happen. It could be the end of the Plan B. The executive branch could never use the Clean Air Act to regulate CO2, no matter who was in the White House. But also, a precedent could be set. Depending on the exact wording of the decision, states and individuals would find it harder to sue the federal government over the damages incurred by climate change. They might even lose the right to do so. It could be a crippling blow.

 

Jim Milkey: And it was—it got extremely heated and difficult.

 

Sam Evans-Brown: So there was immense pressure to quit while they were ahead, cut their losses, wait for a better opportunity, a better case. But Jim Milkey wanted to keep going.

 

Jim Milkey: If we're afraid to bring the case because we might lose, we've already lost.

 

Sam Evans-Brown: He thought, "We're already there." The Bush administration already is dead set against using the Clean Air Act to regulate CO2. First they asked for a rehearing and were told "No." So they decided to go all the way to the top. Jim drafted an appeal to the Supreme Court, asking them to review the case. These petitions are not easy to craft. After all, there are thousands of them every year, and only a select few are chosen for review. You've got to get the court's attention. You've got to prove something in the lower courts went wrong. So Jim wrote his appeal and floated it by the ragtag band of lawyers and environmentalists the case had tenuously cobbled together.

 

Richard Lazarus: And Jim's draft was the one time there was consensus among all the states and environmentalists, and that's that Jim's draft was terrible.

 

Sam Evans-Brown: The last-ditch effort to save what may be the most significant environmental lawsuit in history, after a break.

 

[00:31:04.11]***

 

Alex: Welcome back. Today we're featuring an episode from the podcast Outside/In about the landmark Supreme Court case known as Massachusetts v. EPA.

 

Ayana: So we left off before the break with lawyer, Jim Milkey drafting an appeal to the Supreme Court. His goal? Convince the court to take a case that would challenge the EPA's decision not to regulate greenhouse gases under the Clean Air Act. And to be clear, the Supreme Court had never done this, had never accepted an appeal by environmental groups calling into question a decision in favor of the EPA. The Supreme Court had always given what is called "deference" to the EPA's federal decisions. So when they got the chance to appeal, Milkey and his team knew they needed to write something really, really convincing.

 

Alex: All right. So here we are, back to Outside/In and host Sam Evans-Brown.

 

Sam Evans-Brown: When Jim Milkey first drafted his appeal to the Supreme Court asking them to review their case against the EPA, he made his argument based on CO2 as pollution. It was technical, internationally-focused, science-based. Which is fine, if your audience is donors to environmental groups.

 

Lisa Heinzerling: It struck me that this Supreme Court wasn't necessarily, even in those days, that interested in environmental protection or in international law.

 

Sam Evans-Brown: This is when Lisa Heinzerling enters our story. Lisa is a professor at the Georgetown University Law Center, but before that, she served in the Obama administration as a climate advisor, and had been a clerk for Supreme Court Justice William Brennan. And between all of that, she had spent three years at the Massachusetts Attorney General's office.

 

Lisa Heinzerling: And at that time, Jim Milkey was effectively my boss, and so we got to know each other very well. We're friends, and he liked the way I wrote briefs.

 

Sam Evans-Brown: After Milkey's first stab at the appeal was generally panned by his colleagues, he enlisted Lisa. He understood that she knew how to craft an argument that could get the Supreme Court's attention. The enormity of this job is a little hard to overstate. The EPA was created in 1970. When Lisa Heinzerling took over writing the briefs for Massachusetts v. EPA, it was 2006. According to Richard Lazarus, in that time span the Supreme Court had never taken a case when an environmental group had lost to the EPA in lower court. Never. Heinzerling refocused the whole case on the reasons that the EPA had given for denying Joe Mendelson's petition. The EPA's error, she calls it.

 

Lisa Heinzerling: And that error was to allow the EPA simply to say, you know, I just don't want to do this at this time. We are not interested in taking on climate change.

 

Sam Evans-Brown: If you remember in their response, the EPA listed seven reasons why they said no to the petition. The kitchen sink.

 

Lisa Heinzerling: Almost a seemingly random list of reasons why it didn't want to regulate.

 

Sam Evans-Brown: Among the seven reasons the EPA gave for why they wouldn't regulate carbon, they had listed one that was generally understood to be true: Congress may have passed the Clean Air Act, but the EPA gets to decide how and when to enforce it. This is called their "discretion." The EPA can put off regulation as long as it makes sense. But then there was all this other stuff, six other reasons, some of which sounded a lot more political in nature.

 

Lisa Heinzerling: So even if the statute were perfectly clear that EPA could regulate, had EPA adequately explained why it would not?

 

Sam Evans-Brown: And this was where Lisa Heinzerling found inspiration in a story from 1853, written by Herman Melville.

 

Lisa Heinzerling: I even opened the new version of the cert petition with a quote from Bartleby the Scrivener, who famously says, when asked to perform his job, "I would prefer not to."

 

Sam Evans-Brown: In the story, Bartleby, a copyist, starts passively refusing to do work. So Lisa's trick here was to reframe a case that really the environmental movement wanted to be about climate change, and make it a case about something which—catnip to the justices of the Supreme Court: separation of powers.

 

Lisa Heinzerling: The basic legal error was a quite fundamental error of administrative law.

 

Sam Evans-Brown: In the Clean Air Act, Congress told the EPA it had to regulate air pollution. It said you've got discretion in how to do it, but how much discretion? Unlimited discretion?

 

Lisa Heinzerling: "I would prefer not to."

 

Sam Evans-Brown: Can it give a list that includes a bunch of political considerations as reasons not to act? Like, hey, we don't want to screw up the President's strategy at international climate talks? Isn't that tantamount to saying the President can ignore Congress? This reframing to focus on the balance of power between the three branches of government is what Lisa Heinzerling, who had worked for a Supreme Court justice and seen what makes them decide to take a case, brought to the appeal. Each year only 0.1 or 0.2 percent of the petitions that are written wind up being taken by the supreme Court. But in June of 2005, Lisa's petition was accepted. The first time ever that the Supreme Court had taken an appeal by environmental groups challenging a decision in favor of the EPA.

 

Lisa Heinzerling: They're just human people, and they have their priors and their own idiosyncrasies and preferences about styles of argument. And so yeah, I think an argument at this level, even a legal argument at this level, is an exercise in a kind of creativity that most people wouldn't expect.

 

Sam Evans-Brown: And so they had their three hurdles, three things they had to convince the Supreme Court were true. . First, that greenhouses gases be considered pollution under a law that didn't have climate change in mind when it was written.

 

Ann Carlson: It said basically you need to regulate any pollutant that endangers public health and welfare and that is really common.

 

Sam Evans-Brown: Second, the state of Massachusetts was being caused harm by the decision of the EPA not to do anything about that pollution.

 

Jim Milkey: Immediate, particularized injury.

 

Sam Evans-Brown: And lastly, when the EPA decided to do nothing about that pollution, they made the choice for the wrong reasons.

 

Lisa Heinzerling: A quite fundamental error of administrative law.

 

[ARCHIVE CLIP, Supreme Court clerk: We'll hear argument first today in 05-1120, Massachusetts v. Environmental Protection Agency. Mr. Milkey.]

 

[ARCHIVE CLIP, Jim Milkey: Mr Chief Justice, and may it please the court ...]

 

Sam Evans-Brown: Argument day. The Olympics of lawyering.

 

Joe Mendelson: You're very close. You're sitting down, they're up on the dias. And they have very nice chairs that they can lean back in and kind of spin a little bit around.

 

[ARCHIVE CLIP, Jim Milkey: It is, your honor. We have shown that the sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it's only going to get worse as ...]

 

[ARCHIVE CLIP, Antonin Scalia: Well, when? I mean, when is the predicted cataclysm?]

 

[ARCHIVE CLIP, Jim Milkey: Your honor, it's not so much a cataclysm as ongoing harm. The harm does not suddenly spring up in the year 2100, it plays out continually over time.]

 

Joe Mendelson: At one point during the oral argument one of the justices asked a question. A little bit of spittle came out of his mouth and landed on my paper. [laughs]

 

[ARCHIVE CLIP, Antonin Scalia: I gather that there is something of a consensus on warming, but not a consensus on how much of that is attributable to human activity.]

 

Sam Evans-Brown: Antonin Scalia was the first justice to ask questions, and they weren't friendly questions.

 

[ARCHIVE CLIP, Antonin Scalia: And I gather that, what is it, something like seven percent of the total carbon dioxide emissions are attributable automobiles in the United States?]

 

Jim Milkey: I have a bad habit that, you know, I have a need to correct people.

 

[ARCHIVE CLIP, Jim Milkey: It's actually—it is about six percent, your honor.]

 

[ARCHIVE CLIP, Antonin Scalia: Six percent. Thank you.]

 

Jim Milkey: All the books on Supreme Court practice say never ever interrupt a Supreme Court justice unless it's really important. And frankly, I think I shocked him at that time because I was correcting him against our interest. And he realized that, you know, he was facing someone who was not trying to pull the wool over his eyes.

 

[ARCHIVE CLIP, Antonin Scalia: Only new cars would be affected, right? So even the reduction of the six percent would take a few years, wouldn't it?]

 

[ARCHIVE CLIP, Jim Milkey: It would take a few years, your honor, but it is a basic premise of the Clean Air Act that vehicle fleets regularly turn over.]

 

Richard Lazarus: The amazing thing that happened that morning was that Jim Milkey tamed Justice Scalia.

 

[ARCHIVE CLIP, Jim Milkey: Your honor, we have shown on the record that a 40 percent reduction in carbon dioxide from cars is currently feasible. And since those emissions count for ...]

 

[ARCHIVE CLIP, Antonin Scalia: Well, not in the first year.]

 

[ARCHIVE CLIP, Jim Milkey: No, no. We agree, your honor.]

 

[ARCHIVE CLIP, Antonin Scalia: I mean, ultimately when all the ...]

 

Richard Lazarus: As skilled as he was, as tough and insightful as his questions were, Jim Milkey handled them one at a time. He handled them just perfectly.]

 

[ARCHIVE CLIP, Antonin Scalia: Is that how it works? I'm not a scientist, but I'd be surprised if it was so rigid.]

 

[ARCHIVE CLIP, Jim Milkey: Your honor, I don't believe it's established it's necessarily a straight line. But I want to emphasize that small vertical rises cause a large loss of horizontal land. For example, where the slope is less than 2 percent—which is true of much of the Massachusetts coastline—every foot rise will create a loss of more than 50 feet of horizontal land.]

 

Richard Lazarus: It became clear that Jim had the upper hand.

 

[ARCHIVE CLIP, Antonin Scalia: Your assertion is that after the pollutant leaves the air and goes up into the stratosphere, it is contributing to global warming.]

 

[ARCHIVE CLIP, Jim Milkey: Respectfully, your honor, it is not the stratosphere. It's the troposphere.]

 

[ARCHIVE CLIP, Antonin Scalia: Troposphere. Whatever. I told you before, I'm not a scientist. That's why I don't want to have to deal with global warming, to tell you the truth.]

 

[ARCHIVE CLIP, Jim Milkey: Under the express words of the statue ...]

 

Sam Evans-Brown: What would months later become clear was the crucial question came during the questioning of the lawyer for the EPA. And it came not from Justice Scalia, but from Justice Stephen Breyer. And it was almost straight from Lisa's brief.

 

[ARCHIVE CLIP, Stephen Breyer: Now their claim with respect to that, is at least three of the four considerations are not proper things for the agency to take into account. Namely, whether the President wants to do something different, whether we're running foreign policy properly, whether cooperation with other countries are relevant to this particular issue. So what they've asked us to do is send it back so they can get the right reasons. Now if they want not to do it, what's your response to that?]

 

[ARCHIVE CLIP, Jim Milkey: Justice Breyer, I don't think that it depends on how many pages ...]

 

Sam Evans-Brown: What Breyer is asking here is a little confusing, so let me break it down. He's saying that when the EPA threw the kitchen sink at Joe Mendelsohn's first petition, giving all sorts of reasons why they couldn't regulate carbon, they made the mistake of adding an "S." They said in light of these "considerations." They implied that all of those reasons should be taken and understood as a group, both the legitimate ones, like EPA's broad discretionary powers, and the illegitimate ones. Which, isn't it kind of amazing to think the fate of a decision this large, the future of climate policy in the United States, resting on a single letter. That's what you'd hear that the EPA's lawyer, whose name is Gregory Garre, isn't getting.

 

[ARCHIVE CLIP, Gregory Garre: The petitioners acknowledge that was an appropriate consideration for the agency. So even if you think the other considerations were inappropriate—and we certainly do not, but even if you think they are, the agency gave an appropriate reason. And that reason was supported ...]

 

[ARCHIVE CLIP, Stephen Breyer: When I write an opinion—when I write an opinion, sometimes I write the words, "We decide this matter in light of the following three factors taken together." And I guess a lawyer who said, "One of those factors alone the Court has held justified the result all by itself," in saying the Court has held that, I guess that wouldn't be so. That would be a bad lawyer, wouldn't it?

 

[ARCHIVE CLIP, Gregory Garre: Your honor ...]

 

[ARCHIVE CLIP, Stephen Breyer: And if they write that all of these considerations justify our result, again one of them by themselves, it sounds, they think would not have been sufficient.]

 

[ARCHIVE CLIP, Gregory Garre: I don't think that that is a fair reading ...]

 

Jim Milkey: There really wasn't much press conference coverage until the court finally ruled on April 2nd of the next year, 2007.

 

Sam Evans-Brown: If you haven't deduced this already, the EPA lost. The states and the environmental groups won. The four justices appointed by Democrats had been joined by Justice Kennedy as the swing vote. And if you read the decision, the ultimate reason they won is very narrow. The judges did say that greenhouse gases seemed to meet the EPAs definition of pollution. They did say that Massachusetts was suffering harm because of climate change. But all they said was that the EPA had to go back and apply proper legal reasons if they were going to decline to regulate.

 

Jim Milkey: That's all the case, in a technical sense, did. Notwithstanding that, the coverage of the case was along the lines of, "Supreme Court declares global warming real, rebukes Bush administration, orders solution be found." Which, in a technical sense, is quite inaccurate, but has some truth to it in a larger sense.

 

Sam Evans-Brown: Despite the very narrow ask and really, the very narrow technical meaning of the opinion, its language is grandiose.

 

Jim Milkey: The majority opinion by Justice Stevens wanted none of that, and started out saying, "Respected scientists say," and then includes a list, a long list of all the anticipated harms from climate change. And so in a larger sense, this was the court putting its imprimatur on the problem.

 

Sam Evans-Brown: The ruling cleared the way for the EPA, responding to the sole direction of the president, without any action by Congress, to use the Clean Air Act to regulate the emission of greenhouse gases. The fallout from that decision meant that, after a few years, not only could the agency regulate carbon, they would be required to. Which is why, even today, the Trump administration is crafting new regulations, new rules, ostensibly to limit greenhouse gas emissions.

 

Jeff Holmstead: The Trump administration has adopted this program that really is designed to establish the limits of what EPA's regulatory authority is under the Clean Air Act.

 

Janet McCabe: But the Clean Air Act, I would not say it's run its course, or met its match.

 

Justin Schwab: In other words, Massachusetts is not the final word on this subject.

 

Sam Evans-Brown: I noted at the beginning that the lawyer who wrote the original legal opinion that suggested the Clean Air Act could be used to regulate carbon dioxide said that Massachusetts v. EPA is the closest we'll come to a Brown versus Board of Education for the environment. One decision declared segregation in public schools unconstitutional, the other strongly suggests the federal government has to fight climate change. Both big statements. Statements that feel landmark, like nation-changing decisions. But let's follow that comparison.

 

[ARCHIVE CLIP, Barack Obama: Thank you, Georgetown. Everybody please be seated, and my first announcement today is that you should all take off your jackets. I am gonna do the same. [cheers] It's not that sexy, man.]

 

Sam Evans-Brown: During Barack Obama's presidency, Congress took a stab at Plan A: passing a big, sweeping climate-change law. It was called Waxman-Markey, and it was a cap-and-trade bill. And it went down in flames. So the Obama administration took Plan B—using executive authority to regulate greenhouse gases using the Clean Air Act, as Massachusetts versus EPA said they could, and ran with it.

 

[ARCHIVE CLIP, Barack Obama: Because the decisions that we make now and in the years ahead will have a profound impact on the world that all of you inherit.]

 

Sam Evans-Brown: They wrote something called an endangerment finding, that officially declared six key greenhouse gases "pollution." They used that finding to craft new fuel efficiency standards for cars and trucks, regulations on new power plants that burn coal and natural gas.

 

[ARCHIVE CLIP, Barack Obama: So the question now is whether we will have the courage to act before it's too late.]

 

Sam Evans-Brown: And finally in 2013 ...

 

[ARCHIVE CLIP, Barack Obama: As a president, as a father and as an American, I'm here to say we need to act.]

 

Sam Evans-Brown: A sweeping and politically risky plan to use the Clean Air Act to reduce carbon emissions from existing US power plants, called the Clean Power Plan. With all of this in their pocket, the Obama administration went ...

 

[ARCHIVE CLIP, John Kerry: Mr. Secretary General, Monsieur le Président de La France ...]

 

Sam Evans-Brown: ... to Paris. To the United Nations. And in 2016 ...

 

[ARCHIVE CLIP, John Kerry: When 196 nations simultaneously said a resounding "Yes." We will do our part. We will live up to our responsibility to future generations.]

 

Sam Evans-Brown: The US commitment to the Paris Accords was based almost entirely on the authority affirmed in Massachusetts v. EPA. And so, in a very concrete way, this history, which insofar as any history has a beginning, started in Joe Mendelson's nursery ...

 

Joe Mendelson: Yeah, it was in some ways the third child that was born at the time.

 

Sam Evans-Brown: ... ended here.

 

[ARCHIVE CLIP, John Kerry: And that is why our gathering today is, in fact, historic. The United States looks forward to formally joining this agreement this year, and we call on all of our international partners to do so.]

 

Sam Evans-Brown: Except, of course, history doesn't have an end. Because if the US Supreme Court told the federal government that CO2 should be considered a pollutant in 2007, why isn't that happening? How is it that we're not hearing all about this new wave of citizen lawsuits designed to force the federal government to comply with Massachusetts v. EPA to regulate greenhouse gas emissions? Well, for one, those lawsuits are happening, but the reason they don't get more attention is because litigation is not legislation. Interpreting policy is not as powerful as making it.

 

Sam Evans-Brown: If you think back to Brown v. Board of Education, that landmark 1954 decision led to some progress. But the court didn't specify how to desegregate, which opened the door to differing interpretations and evasions of the ruling on state and local levels. In Massachusetts v. EPA, the court said greenhouse gases are pollution, but it didn't specify how to reduce that pollution, and the "how" may be the Achilles heel of the ruling.

 

Sam Evans-Brown: Massachusetts v. EPA relies on The Clean Air Act—a law which is 50 years old as of this year—to deal with a challenge it wasn't imagined to combat. And that makes it extremely vulnerable to legal challenges. Two examples of this.

 

Sam Evans-Brown: The first weakness: while the definition of pollution in the Clean Air Act is extremely broad, because the authors wanted it to be flexible—"anything that is a danger to human health and welfare"—it's obvious it was written with certain pollutants in mind when you look at the thresholds that trigger regulation.

 

Janet McCabe: The amount of pollution that triggers permitting and review has been set in the Clean Air Act at either 100 tons per year or 250 per year.

 

Sam Evans-Brown: That's Janet McCabe. She was the Obama administration EPA official who was the primary architect of the Clean Power Plan. In the 1970s, the authors of the Clean Air Act wanted to focus on large-scale polluters. They said if you're just out in your yard gardening, releasing the chemicals that create ground-level ozone, you shouldn't need to get a permit. They said you only need a permit if you're emitting 100 tons or more. Which is a lot when we're talking about, like, nitrogen oxides, but in carbon dioxide terms ...

 

Janet McCabe: Well, a hundred tons of CO2 is not much, right?

 

Sam Evans-Brown: [laughs] Perhaps a large kindergarten class might emit ...

 

Janet McCabe: Yeah, you know, or an apartment building, right? Or a boiler at a mall.

 

Sam Evans-Brown: In the United States, the average person emits around 16 tons a year. So if you've got, like, a big family, would you need to get a permit from the federal government?

 

Janet McCabe: The Clean Air Act couldn't possibly have contemplated that thousands and thousands of new types of non-industrial sources would have to get Clean Air Act permits.

 

Sam Evans-Brown: In their attempt to finagle this, the Obama Administration laid out a roadmap. They said, we'll start with the big polluters and we'll work our way down. And eventually, we'll decide how small of an emitter will be required to get a permit. This proposal landed them back in the Supreme Court in another lawsuit decided in 2014. This case was the unfortunately named UARG v. EPA, which stands for the Utility Air Regulatory Group.

 

Justin Schwab: An ad-hoc association founded by the electric utility industry for purposes, among other things of potentially challenging EPA regulations.

 

Sam Evans-Brown: UARG! Sorry.

 

Justin Schwab: The majority of the Supreme Court in UARG said you cannot do that.

 

Sam Evans-Brown: This is Justin Schwab, who until last year was deputy general counsel in the Trump administration's EPA. In this case, the justices really didn't like this "We'll start with the big emitters and figure out the rest later" approach.

 

Justin Schwab: They said we, the Supreme Court, are not willing to stand on the dock and wave goodbye to EPA as it engages on a multi-year voyage of discovery and decides what it really wants to do.

 

Sam Evans-Brown: This was not a huge defeat. They told the EPA to just keep regulating the polluters they already were anyway, the ones who were already getting Clean Air Act permits. But it signaled trouble ahead.

 

Justin Schwab: And they said in UARG, we will greet it with heightened skepticism where an agency purports to discover in an obscure or dormant provision of the statute sweeping authority over important parts of the nation's economy.

 

Sam Evans-Brown: In other words, if all of a sudden a law that has never or rarely been used is invoked in a dramatic new way, the court gets suspicious. This is called the elephants-in-mouseholes doctrine, which brings us to the second legal weakness.

 

Sam Evans-Brown: In the Obama administration's regulations for existing power plants, the Clean Power Plan, they wrote the rules as if they were regulating the entire grid. In the 1970 Clean Air Act, there are certain turns of phrase. For example, referring to an "existing source" of pollution, which at least imply the law was talking about regulating facilities at the individual level, which is what had always been done.

 

Justin Schwab: The Clean Power Plan radically departed from that tradition and from that implicit interpretation of the limits of the EPA's authority.

 

Sam Evans-Brown: Again, the climate change strategy of one of the largest greenhouse gas-emitting economies in the world, coming down to grammar. And it seems that this got them in trouble again. A new coalition of states and industrial groups who did not want to revamp their grids challenged the Clean Power Plan, asked the DC Circuit Court of Appeals to issue a stay. That is, to stop the Obama administration in its tracks while they challenged their plan in court. The DC circuit declined to do that, but in February of 2016, the Supreme Court stepped in.

 

Janet McCabe: And amazed everybody when they issued the stay. And of course, it was all right around the time that Justice Scalia—you know, it was maybe one of the last things he weighed in on before he passed away. You know, I mean, it was like, you couldn't write this in Hollywood. And so then, once it was stayed—boom. Everything stopped.

 

Justin Schwab: By black letter law and by the Supreme Court's own precedents, in order to issue that stay, the Supreme Court had to determine that there was a likelihood of success on the merits of the challenge. We don't know what aspect of the challenge. The Supreme Court did not give any commentary on its stay, but we know that a majority of the Supreme Court found that there was a likelihood of success on the merits of the challenge against the Clean Power Plan.

 

Sam Evans-Brown: In other words, they thought something about the Clean Power Plan was illegal. This stay might mean that if a test of Massachusetts v. EPA ever comes before the Supreme Court, they might deal it a blow. They might decide that there is no elephant in this mousehole, that while greenhouse gases may be pollution under the Clean Air Act, it doesn't have enough power to reign that pollution in.

 

Sam Evans-Brown: The Trump administration has now put forward their own proposals to regulate emissions. Their coal plant rule, for instance, is called the Affordable Clean Energy Rule, or ACE. Their new car emissions rules are called the Safer Fuel Efficient Vehicle Rules, or SAFE. Both do much less to reduce emissions than their Obama-era counterparts and—surprise, surprise—both are being challenged in court. And either of those challenges has a potential to wind up again before the highest court in the land.

 

Justin Schwab: You know, the Supreme Court does not hand out cert like candy, but it's entirely reasonable to expect that these issues will come before it for a fifth, and potentially final statement in this saga.

 

Sam Evans-Brown: This is the peril of the Plan B, of relying on the Clean Air Act—a law that did not have climate change in mind when it was written —as our de facto federal climate policy.

 

Ann Carlson: I guess I think at the end of the day, if one of these regulatory programs that comes up through the Clean Air Act to regulate greenhouse gas emissions gets to the Supreme Court, it really will be—the Supreme Court is everything on this question.

 

Sam Evans-Brown: UCLA's Ann Carlson again, author of Lessons from the Clean Air Act.

 

Ann Carlson: So when we're thinking about whether the Clean Air Act is a powerful tool, at the end of the day, the ultimate decision about that question is going to reside in the Supreme Court.

 

Sam Evans-Brown: It could be the end of Plan B. But the end of Plan B means that all that remains is to go back to Plan A: asking Congress to write a new Clean Air Act for the 21st century.

 

Jeff Holmstead: One of the things that why I think it's important is, right now, if you have the environmental community that believes that they can achieve the emission reductions they need under the current Clean Air Act, there's much less of an incentive for them to push for legislation.

 

Sam Evans-Brown: Jeff Holmstead again. From George W. Bush's EPA. There is a group of political scientists out there who have observed that major, lasting political changes—the types of laws that aren't overturned the next time someone from the opposite party is elected—tend to be passed by bipartisan coalitions. The Clean Air Act, for instance, was passed 73 to zero in the Senate in 1970. That was shortly after 10 percent of the entire United States took to the streets in protest for the first Earth Day.

 

Jeff Holmstead: And I think if EPA, if those limits are established, and it becomes understood that EPA's ability under the current Clean Air Act is relatively limited, there will likely be much more pressure on Congress to develop something that actually, you know, will be longer lasting and won't change from administration to administration. And I think that's a very important thing. And I think that within the next decade, maybe less, I think there will be some sort of comprehensive climate-change legislation.

 

Sam Evans-Brown: So again, when does a history end? It doesn't.

 

Jeff Holmstead: What I would say is, the legacy of Massachusetts v. EPA is still being written. And I don't think we will know the true legacy for years into the future.

 

Sam Evans-Brown: Outside/In was produced this week by me, Sam Evans-Brown, with help from Taylor Quimby, Justine Paradis, Hannah McCarthy, Nick Capodice, and Felix Poon. Erika Janik is our executive producer. Maureen McMurray is director of creative production jurisprudence.

 

Sam Evans-Brown: Special thanks to Dina Kruger, Jason Samenow and Caitlin McCoy. We also produced a print version of this episode, which we published in collaboration with Inside Climate News. Vernon Loeb was the editor of that story. Please do remember Outside/In is produced by a local public radio station, one that depends on listener support to keep making stories like this one. You can support the show by visiting Outsideinradio.org. While you're there, get in touch. Tell us what you think of the show.

 

Sam Evans-Brown: Music in this episode by Blue Dot Sessions. Our theme music was made by Breakmaster Cylinder. Outside/In is a production of New Hampshire Public Radio.

 

***

 

Alex: So that was the podcast Outside/In, from New Hampshire Public Radio, with host Sam Evans-Brown. Hope you enjoyed that episode.

 

Ayana: And since this episode was recorded, a little something has changed. We have a different president.

 

Alex: Right. That's right.

 

Ayana: This episode refers to Trump a few times. Now obviously, Joe Biden is President of the United States of America. And what exactly that means in the details, we're not really sure yet. But we know the Biden administration has certainly promised to try to push through some major federal climate policy, get Congress to make that happen and to step up what the federal agencies are doing. They've shown that through their initial executive orders on climate. So whether or not there will be a point in the future where the authority to regulate greenhouse gases does not hinge on technicalities in the Clean Air Act, which was created in 1970, that remains to be seen. We'll all be staying tuned to see how that pans out.

 

Alex: All right. So if you enjoyed this episode, definitely check out more episodes of Outside/In. You can find it on Spotify or wherever you listen to your podcasts.

 

Ayana: And we'll be back next week with a new episode of our podcast, How to Save a Planet. Thanks so much everyone. See you next week.