 Greetings from the National Archives. I'm David Ferriero, Archivist of the United States and it's my pleasure to welcome you to today's virtual author lecture with Richard J. Lazarus, author of the Rule of Five. Before we begin, I'd like to tell you about two upcoming programs you can view on our YouTube channel. On Tuesday, April 27th at 1 p.m., Joshua D. Rothman will tell us about his new book, The Ledger and the Chain, a study of America's internal slave trade in its role in the making of America. And on Thursday, April 29th at noon, we'll hear from John Grinspan, author of The Age of Acrimony, an examination of 19th century America's unruly politics. Today, April 22nd is Earth Day. Since the first Earth Day was celebrated in 1970, this special day has grown into a global event observed by a billion people in nearly 200 countries each year. The rising public concern about the environment led to the establishment of the Federal Environmental Protection Agency in the passage of laws to protect the environment. The following decades saw litigation over the scope of those laws, and today's featured book examines what the author calls the most important environmental law case ever decided by the U.S. Supreme Court. In an unexpected triumph for the plaintiffs, the court agreed that the Clean Air Act required the EPA to regulate greenhouse gases. Richard Lazarus brings us the story of the landmark decision, Massachusetts versus EPA, and the people who guided the suit up to the highest court in the land. Richard J. Lazarus is the Howard and Catherine Abel Professor of Law at Harvard University, where he teaches courses on environmental law and Supreme Court decision making. He's represented the government and environmental groups in 40 Supreme Court cases, and has presented all argument in 14. For 10 years, he's been co-teaching with Chief Justice John Roberts a course on the history of the Supreme Court. Lazarus was the founding director of the Supreme Court Institute, which prepares attorneys for oral argument and over 90% of the cases brought before the Supreme Court. Now let's hear from Richard Lazarus. Thank you for joining us today. I'm delighted to participate in this event sponsored by the National Archives. The National Archives is itself, as we all know, a national treasure, a place I've spent many hours doing the kind of archival research that is the foundation of this book talk, actually. So what I'm going to talk about today is my recently published book. It's called The Rule of Five, Making Climate History at the U.S. Supreme Court. The talk will be divided into three parts. First, the arc of the story, my overall goal in writing the book. Second, I want to highlight just part of the book story, right in the sense of the book's voice, what makes the story, I think, so engaging, and also what makes the story so important. And third, an unanticipated challenge I had in writing the book, and then how I chose to address that challenge. All right, the story's arc and its primary objective. The book is divided into 20 chapters, followed by an epilogue. The arc, it really begins with a guy named Joe, and the story ends with the Supreme Court ruling to make history. The most important environmental law case ever decided by the United States Supreme Court. It's called Massachusetts v. EPA, often referred to as environmental law as ungrounded border of education. A case which not only transformed U.S. climate change law, but had worldwide impact. Now my primary objective is to write this book with two fold. First, I want to write a book for the first time, actually, for a popular audience, revealed what makes the Supreme Court advocacy so challenging, so fast-saying, and from both sides, electric. Where the advocate stands in front of the court, but then the also side. The other side, behind the curtain, where the justice to sit in their chambers and they meet together in the conference room. But I also want to open a window of what the general public inside to see an extraordinary amount of strategy, maneuvering, and conflict. The personal and professional drama, not from bad motives, but just because when you're at the United States Supreme Court, the stakes are very high. I also want to write a book for a general audience to reveal what's made it so difficult for our country to address climate change. Why it's proven so hard, often reasons most people don't know, and why for that reason this case is so important. There's no important environmental issue facing the U.S. or the world today than climate change. The coronavirus underscores, there's no escaping the need for global cooperation for these kinds of global threats. So I began researching the book in 2015-2016. I wrote it in 2018-2019. I approached the researchers book where I wrote a Supreme Court read. It just scorched earth, scorched earth research. I interviewed everyone. The Clinton administration officials, the Bush administration officials, the lawyers on both sides, many of you judges and each justice. The only thing I wouldn't do is I would not interview any law clerk. Unless the judge or justice gave permission. I can't do that as a law professor because I would tell my students never to do that. So I've always asked permission before I would talk to anybody. I also saw all the underlying documents. I ended up knowing far more about this case than any including the participants themselves. I used public record requests, but most of what I got was voluntary for people. Boxes and boxes and boxes and jump drives, emails back and forth, handwritten notes, draft briefs, basically everyone. So here are a few highlights of the book, the illustrative parts of the story. Chapter one of course, the opening scene. It's October 1999. After a year of delay, Joe Mendelson walks from his capital office down the EPA and hand delivers a petition. Petition he had worked on and finished a year before, but had filed because of pressure. One he wrote at night, literally seen by his daughter's crib, working on it. What did this petition do? It demanded the Clintony pay. They demanded the Clintony pay. That's the Clinton administration in 1999, regulating greenhouse gas emissions from new motor vehicles. Joe at this point was simply fed up by the lack of action by the Clinton administration on the climate issue. So who is Joe Mendelson? He was a young public interest lawyer who worked for a public institution no one had ever heard. The Center for Technology Assessment had a total of five employees, some full-time, some part-time. They worked paycheck to paycheck and quite often for no paycheck at all. They had small offices in Capitol Hill from which they'd been evicted just a couple weeks before, violating local zoning notices. And Joe again worked very much along. None of the powerful environmental groups, Natural Resource Defense Council, Sierra Club, Earth Justice, none supported what he was trying to do. In fact, they actively opposed it. He even tried at one point to cut off his funding, and this Center did not have much funding. But Joe refused to bend. He walked down to EPA. He filed a petition to demand the EPA Act. His feeling was these guys would support his bosses. They couldn't tell what to do. So he pulled the trigger. He hand filed a petition. The petition made its way to the doctor room. It was formally received in EPA by Dr. Burke, named Jeannie Poole. She put the card, the metal card, and it rolled down to General Counsel's office in EPA. No one then imagined that eight years later, that petition would arrive in the United States of Greenfield. Interestingly, though, I discovered this in the research, there was reason to think that EPA might grant the petition, not the Clinton administration, who deliberately ignored it the entire time they were in office. But the Bush administration once it took office. Because George Bush, when he ran against Al Gore in the 2000 election, in September 2000, he campaigned with a promise to regulate greenhouse gas emissions from power plants. He decided to go the left to Gore during the campaign. He appointed to his cabinet people who were hawkish on addressing climate change. He named his head of EPA, Christine Todd Whitman. Christine Todd Whitman back then was a household name. She was presidential candidate. She'd been governor of New Jersey, widely touted as possible future presidential candidate and Republican, and actually had been closely named Bush's own vice president. She took the job because of climate change. She felt so seriously about the issue. Secretary of State, Van Cullen Powell, Powell thought that climate change was a pressing issue of enormous national security significance. He had a briefing on climate change within one week of taking office, at the end of January 2001. Cullen used the rights to his national security advisor. She also shared Powell's view on the seriousness and urgency of climate change. But no one was more hawkish than Bush's Treasury Secretary, Paul O'Neill. Paul O'Neill, when he interviewed for the job, was told how he cared about the climate issue, one most important. And Paul O'Neill felt so strongly about this. He had the first cabinet meeting at the end of January, just after the inauguration, January 2001. Paul O'Neill went to the White House early. He put a copy of his speech he'd delivered a year or so before in front of the chair, every member of the cabinet. It was his speech on comparing the threat of climate change to nuclear holocausts. They all thought this was it. They were going to act on this issue. And then this guy came in. Dick Cheney. Dick Cheney had come in from the Halliburne, from the energy industry. Within two weeks, he persuaded George Bush to renege on his campaign. Well, consulting with anyone at EPA, Christine Tyler and all of them knew nothing about it, and Bush did that. And what Cheney did was he orchestrated Bush to send a letter to Republican members of the Senate, which said, not only am I not going to regulate greenhouse gas emissions, but I don't think I have a legal authority to do it under the Clean Act. We had Bush not just answer a policy question, but a legal question. The meaning of the Clean Act and the word blue, you'll find out that was a stumble by Bush and by Cheney. But they consulted none of the lawyers when they did this. The petition EPA denied on September 2003, they had no choice but to deny it, given the president's decision. Christine Tyler Whitman's career, which is why many of you have never heard of her, was finished as a result. She was humiliated on the national stage and the national stage. At this point, though, then the case went to court. And it was nothing easy or smooth about the pathway opening to the Supreme Court. But by the time the case reached the courts, Joe Mendelsohn was no longer alone. There were hundreds of lawyers on his side, for about a dozen states and more than two dozen national ground groups. They called themselves the covered oxide warriors. In the first round, the U.S. Court of Appeals for the DC Circuit, they lost. They lost that case. The DC Circuit, an opinion joined by two of the judges, judges Randolph and Judge David Centowell, ruled that EPA had lawfully denied the petition that Joe Mendelsohn found. After that loss, everyone but one attorney on the environmental side, everyone thought that was it. They should end the case, not seek any further review. Only one attorney thought that was Jim Milton, whose picture you see. The head of the Massachusetts Attorney General's Office Environmental Office. Jim was the only one who thought they should roll the dice, seek further review. Not act as in a loss, throw basically the football equivalent of a Hail Mary and see if they might get further review including the Supreme Court. Everyone else thought, terrible idea, it was the major loss of the Supreme Court. Better to just fold this tent, they had not lost any major press in the staff of the DC Circuit and bring another case and another drunk. Milky was under enormous pressure not to file any further reviews. The President of the Natural Resources Defense Council, very distinguished, highly regarded individual, Francis Beineke, called his boss, Milky's boss, Attorney General, and called Milky himself and said, the future of the environmental media is on your head if you do this. That's how strongly people felt that this was a mistake. But Milky, they had no power to stop him, anyone of the parties filed, so Milky filed the circuitry and they all joined it. They joined it not because that was a good idea, they wanted to help complete, want to control him and show the litigation. There also, there wasn't a chance the court would actually grant review of the case. But the court did just that. On June 26, 2006, the Supreme Court of Grand and Review of Massachusetts, we were a seat here. All the attorneys on the side of the petition, the environmental groups in Massachusetts, they were just stunned. They couldn't believe it. They never fought for the Grand Review and for good reason. This was the first time the Supreme Court had granted review in an environmental case over the government's opposition since 1971. That's 35 years. That's the last time they did it and when they did in 1971, then the environmental kids lost the case. So they looked at, they were excited. For the same time, Jim Winkie thought, oh my God, what have I done? Because it takes four votes to grant review. It takes five votes to win in the United States Supreme Court. That's the title of the rule of five. And you never know who the four votes are who voted to grant review. They could be ready to review not to give you a win, but to just the opposite. To do exactly what the environmental groups in most of the states felt was at risk. And that is to give you a big loss instead. Now chapter 12 of the book, it's called The Lure of Electrum. Fast forward a little bit. The briefs had now been filed by the environmentalists and the states. They found the briefs. They worked on them in the summer of 2006. But once they filed the briefs, then a huge battle developed over who should present or argue for the United States Supreme Court for the states and environmentalists. In the lower courts, they allowed more than one advocate. Supreme Court has almost always allowed one. No matter how many parties on one side, they want one. They don't want many. So some things were easy. Everyone agreed about one thing. The best person should give the argument. They also agreed, right, that the best person should give the best possible argument. That's who the agreement ended. Huge dispute over who that best person was. And it came down to this. The states tend to favor one individual and the environmental groups tend to favor another. It was a good faith disagreement. Two highly qualified candidates. One can make a strong case for either one of them. It's not unusual, United States Supreme Court, because they only allow one minority parties to have this kind of conflict. Sometimes it turns out to be a coin flip, really a coin flip, to decide who's going to argue the case. The states are high. The emotions are high. The egos are high. And the ambitions are high. One can make one's career a major Supreme Court argument. But in this case, I've seen these disputes all the time. In this case, the order of conflict became extraordinarily destructive. I've seen a lot of them. I've never seen one as intense as this. So intense that that was in October 2006. That's 14 and a half years ago. And the people either side of that dispute are still not speaking to each other. And they were very good friends and colleagues before this happened. Even after it seemingly settled, over who would argue? And that was me, Jim Milkey, in the Massachusetts Attorney General's office in the case. He had been the counsel of record. Seven, maybe nine days before the actual argument, after weeks of preparation, environmental groups attempted a coup. They called Jim Milkey on a Saturday morning, and they said, Jim, you've got to get off the case. You're not good enough for this case. You're not doing a good job of the records. You're going to have losing this case for us. That's a crazy idea. You can't replace your advocate, like a week and a half before the actual argument. It's not going to work. It is not not going to prepare anybody else. The craziest of the idea that you would try then underscores the depth of distrust among the people on the same team. The environmental groups, they had worked on this issue for a long time. There was no issue more important to them than the climate change issue. This was their Supreme Court case, along with the states. And they thought it was going to go down because the state AG person wasn't good enough to argue the case. So the motivation is understandable. The solution to him is unfathomable. Nookie heard this, and Basie said, that's not going to happen. But imagine what it's like to get that call just before you're about to present at our United States Supreme Court. The next chapter is described in the argument itself. These chapters are designed to give the reader a sense of, first of all, the stunning physical setting of a global. It's extraordinary grander. If you haven't gone, you should make sure you get a chance when they're back at the courtroom again, of course. The architect from the Supreme Court building was tasked over and did a phenomenal job. But as much as the courtroom, the whole building, has this enormous grandeur to it with these freezes and columns, it's also possible physical intimacy. When you stand at the lectern in front of the justices, you are 74 inches away. There's no court in every argument where you're as close as you are in the U.S. Supreme Court. The advocate literally leaned over and put out his or her hand, and the Chief Justice could lean over and put out her or his hand, and they could touch. And the bench itself is a bow, so it wraps around you. The extraordinary give and take between the justices is sometimes I try to give in the book with the justice of the advocates, but also in the justices themselves. Because by tradition, the justices do not speak about a case until they get to a large. So they don't yet know what their colleagues on the bench think. And the hour of the argument is the longest time they're ever going to talk about the case today. So it's the first time in the longest time. When they get to the conference, they'll talk about it in a few moments. They actually vote in order of seniority, seniority, seniority, seniority. Without any general discussion of the case, the voting really happens. There is no pre-deliberation in the arguments when it happens. So the advocate's challenge is considerable. Because the opportunity is amazing, right? They are there in the room when the justices are first talking about the case among themselves. And the justices are talking about the case through the advocates by asking questions. So the advocate has to decide how to frame the issue and the way most likely to win the case. There's often a huge difference the way you can frame it. One way you frame it, you can win. Another way you frame it, you can lose. You have to anticipate all the hard questions you're going to get from the justices and develop very crisp, very efficient answers. The norm these days is to receive 50 to 75 questions in 30 minutes. It's a different telephonic system for the pandemic, but the way it's always been done will soon be done again, I believe, next fall. The justices' questions are extraordinarily marked. Whatever you think of the ideology of the justices, they are really smart boys. And it's a lawyer's equivalent to trying to hit a major league baseball pitch when it comes in. And you've got to answer quickly. If you're answering 50 to 75 questions in 30 minutes, do the math. The question itself is going to take up a lot of your time. Which means you have to answer your questions right front-load, one point, thesis support, transition, thesis support, transition, without missing a beat. The book describes your argument in detail, Milky's back and forth with Scalia and the Chief Justice in particular. 23 questions from Justice Scalia alone. What I want to do to show you what the justices is give you the beginning of the oral argument. And listen to it. Hear what happens at the very beginning of Jim Milky's argument. Mr. Milky. Mr. Chief Justice, may it please the court. If I may, I'd like to frame the merits very quickly and then turn immediately to standing. Although the case before you arises in an important policy area, it turns on ordinary principles such as statutory interpretation and administrative law. EPA made a decision based on two grounds, both of which constitute plain errors of law reviewable under any standard. We're not asking the court to pass judgment on the science of climate change or to order EPA to set mission standards. We simply want EPA to revisit the rulemaking petition based on permissible considerations. Right. Imagine you were a climate activist and, you know, here's the biggest case. You have, as they did, you slept overnight on the cold sidewalk outside the United States Supreme Court. But even November 28th you get one of the very few coveted seats available for the court. You walk into the courtroom and you're waiting, right, and then your champion stands up before the United States Supreme Court and says that. Yeah, yeah, yeah. This case arises in the court policy area but don't worry and think about that. We're not asking the court to pass judgment on the science of climate change. We're not asking you to order EPA to do anything at all about climate change. We have to set a mission standard. All we want is to have EPA visit the rulemaking petition again based on permissible considerations. That's all. You would expect your champion to tell the court about how important climate change is, how it's the threat it presents in the United States and the world, to wake them up to this issue. But instead all he does is say this is the administrative law case, this is the administrative law, it's not a big deal to send it back to EPA. So why does he do this? Because he's being a really good boy. It might make the heart of climate activists it might make my heart and many of your hearts go pitter-patter to think about climate change and how important it is. But milky knows he's not getting a speech to climate activists. He's not at a campaign rep. He's not testifying before Congress. He's talking to nine justices in the United States Supreme Court. He needs their votes. And climate change is not what makes their heart go pitter-patter. What makes their heart go pitter-patter is administrative law. That's what they think and care about every day in so many other cases. He needs their votes. And that's what he's trying to do. The best environmental lawyers are not the best environmentalists. They're the best lawyers. And he has to find a way to frame the women. In the witness case, that means making an amount of issue which he can get five justices to vote for. So he's making it an ordinary principle minister. He's making a small ask. Easy case, not asking you very much. Just this little thing based on ordinary principles. If they win it as we'll see, they'll go to town with it politically. But first they have to win it. They have to shift the story from one side of the elector to the other. From the side where the advocates argue to where the justices meet afterwards. Behind the massive red birds in the boat. This is where the justices and law clerks work in their chambers. The book in particular describes what happened at conference. This is where the justices met privately two days after the argument. When they meet at conference, they sit in the room with the justices themselves. They have assigned seats, of course. They sit by seniority. The chief justice, or senior since at one end at this point, Justice John Paul seems the other and then a round in seniority. Scalia, Kennedy, Thomas, Souter, Ginsburg, Breyer. Alito then was a junior justice. That meant he took the notes of what was said and he answered the wooded door that he were not on the door. This is a highly confidential proceeding. But they discuss the case briefly when they vote. The chief goes first, he summarizes the case and he votes. Then Stevens, then Scalia, then Kennedy. If you're the last justice, no one cares about your vote at all if they've already figured out the result. Why then? That's actually why they asked so many questions about argument. He tweeted, he joined the court in 1986. He discovered he was coming up last. The cases were decided before he got a chance to open his mouth. So he switched to all argument. They made all argument the place he was going to try to lobby other justices, which is what everyone does now. They went around the room, they voted, it was five to four. Justice Kennedy supplied the fifth one. So John Paul Stevens, Justice Kennedy, Souter, Ginsburg and Breyer. That's the majority. Now when that happens, that's just called the opening bell. That's the vote at complex. That's the preliminary result. What then has to happen is very important. Because the senior justice and the majority, in this case with John Paul Stevens, he has to decide who's going to write the court's opinion in the case. And Stevens here was faced with a real problem. I met with him in Florida to talk about his decision here. Because he had one of two obvious choices. The first was the silence himself. A big case. One of the few big cases, the more liberal, progressive members of the court were the majority that came here. He could assign it to himself. He felt important about this case. It was very important. Or he could do the more strategic thing and assign it to Justice Kennedy. That's the way you make sure you keep the vote. Justice has changed their votes all the time between the preliminary vote and the final vote. Justice Kennedy was known for changing his mind in cases. He had changed his mind in big civil rights cases. He had changed his mind in environmental cases. People with had a majority could use him during the opinion-writing process. The best way to keep the vote assigned him the opinion. Because then you know he'll write the opinion the way that he agrees with. He also will feel some institutional responsibility to stay with the opinion given that's been his assignment. He still changed something but far more rarely. So Stephen had decided what to do himself or Kennedy. If he made it himself he then had to work hard to make sure he didn't lose Kennedy's vote. And just the year before Scalia had lost Kennedy's vote in a big environmental case between the time of conference and the final opinion. Stephen said, I'm assigning it to myself. Why? He said, I'm a Republican. He said, I'm a Republican. And I can't understand why so many members of my party are not taking the climate issue seriously. He also said this was an opinion we wanted to write for the American people. He said, sometimes I write an opinion for different audiences. Quite often it's just for the lawyers and the parties. Sometimes it's for like law school and law students. This one I want to write for the American people. So Stephen took the ownership of the opinion but then he had to not lose right Kennedy's vote. I refer it as an octogenarian bowtie Jedi master in terms of what Stephen pulled off in this case. This guy was well in this operating system. So what Stephen did is he circulated his first draft. His first draft got including his own four votes. The dissent? Two dissents by Scalia and Machete also got four votes. Kennedy did not yet join the opinion. So Stephen circulated a second draft. Four votes. Third draft. Four votes. Fourth draft. Four votes. Stephen has to make compromise. He has to include language to try to get Kennedy. And then you'll see him giving a group hug to Kennedy and prior things Kennedy would try to get Kennedy in and over. Fifth draft. Four votes. Sixth draft. Four votes. Seventh draft. Four votes. At this point he's making enough compromises to get Kennedy to try to come but just the suitor sort of upset by some of his drafts. His own concurring opinion which goes after Nikkei quite aggressively for not doing more in this case with Justice Ruth Bader Ginsburg joins. Draft number eight Kennedy joins. And then Stephen gets Kennedy but gets suitor to withdraw his opinion. But he succeeds. And he wrote the opinion as a call to action. As much as he brought with it to state and said this is not a big case about climate change in the last Nikkei Stephen wrote it all about climate change all about what respected scientists believe about climate change. He wrote this to try to trigger a whole lot of action by the government. The next chapter talks about how this case made this. It didn't make history in the first instance under the Bush administration. It was under the Obama administration. The Obama administration took the Bush administration's laws in Massachusetts versus the UK and they ran with it. There is every single significant part of their climate program to reduce the nation's greenhouse gas emissions was on the basis of Massachusetts to keep it. Because this is what President Obama knew one could not successfully address the climate issue unless he could get the nationwide global agreement on climate change. No one nation could do it by itself. But the science doesn't allow any nation to do it because emissions come from all over the world. U.S. may be most responsible for the emissions historically but yet they have the whole world who operate and reduce emissions having serious efforts to address it. But what the President also knew was the rest of the world was not going to do it because they had shown they weren't going to do it unless the U.S. took the first big step because the U.S. was disproportionately responsible for most of the emissions already accumulated in the atmosphere. So until the U.S. took action and he had until December 2015 he couldn't do it in four years. He had over a second term he had to throw the agreement the meaning in Paris of almost two generations of the world on climate in December 2015 to demonstrate to the U.S. world he could get it done. And that's what he did. Putting the last pieces in place in the fall of 2015 all based on Massachusetts' UPA. And because of that ruling that actually the Paris Agreement 195 nations happened. Now when I first wrote the book I was researching the book and back in 2016 I thought I knew Miami Miami was going to be the agreement in Paris in 2015 as a result of this historic ruling by the Supreme Court. I did not then anticipate what in 2015 the results of the 2016 election. Perhaps if I spent a little less time in Cambridge, Massachusetts I would have had a better sense of where the nation was going in November 2016 but I was completely caught off guard. Then as an author I had a challenge I had expected what do I do with it? What do I do with the election of Donald Trump in November 2016? I do it three things I do first, I had to acknowledge it. I couldn't write the book and end it with the Paris Agreement. I had to acknowledge it, I had to explain its relevance. Second, I knew I did not want this book to become yet another book about Donald Trump or otherwise more importantly I had to look where the latest event of the moment. I was trying to tell a more timely story and not a story that would depend on the last thing that just happened in the Trump presidency. Because of my third goal that was to have a story that was meaningful to read as far past the presidency of Donald Trump for readers years from now who could enjoy and learn from the truly story about Supreme Court advocacy and climate change. Perhaps even a reader of the future who might even say in the distant future now, do you think Donald Trump died again? So that's the role of the uplaw to try to place Trump in perspective and the lessons the bookstore has for all of us. So what are those lessons? First, what difference one person can make in making a school? Second, even with the historic U.S. Supreme Court rule is not enough. It takes as it should more than the votes of five justices of the Supreme Court to achieve transformative legal change in the United States. In the case of Brownmore Education enormous promise in 1954. But obviously, it did not solve the problem of race discrimination in the United States. It took far more than that to begin to address that issue. It took a lot of statute but ultimately it takes it to change an attitude. The Massachusetts or the CEP also enormous promise. But to achieve truly long lasting change requires votes. But not the votes of just justices or just five justices but of individual votes. That's how you end up with laws like the Civil Rights Act. That's how you end up with the climate change law. And at least in this country, that's as it should be. The Supreme Court in the United States can jump starts, but it can't complete the job. And that's why it's so important to people vote. And that's also, of course, why the election this past November was so historic for Brownmore to walk. Thanks very much.