Amid all the speculation that the U.S. Supreme Court is likely to rule on the Obama administration’s national health care law via a split 5-4 decision, today marks the five-year anniversary of another landmark split decision by the nation’s highest court: Massachusetts et. al. vs. EPA et. al.
Then as now, Justice Anthony Kennedy was the swing vote as the court ruled that the Environmental Protection Agency has the authority — and ultimately, the obligation — under the Clean Air Act to regulate global warming pollutants, including carbon dioxide, methane, nitrous oxide and hydrofluorocarbons.
In its powerfully worded decision, the majority said that “the harms associated with climate change are serious and well recognized” and that the EPA has a duty to issue rules that would “slow or reduce” global warming. The refusal of the Bush administration’s EPA to regulate greenhouse gas emissions, the justices said, had led to “imminent” and “actual” harm to the state of Massachusetts (primarily from rising sea levels).
Compelled by that historic decision, EPA Administrator Lisa Jackson issued an “endangerment finding” in December 2009 that “greenhouse gases…in the atmosphere threaten the public health and welfare of current and future generations.”
And flowing from that finding, just last week her agency issued a draft rule that will for the first time regulate global warming pollutants from new power plants.
The leading hero in the legal suit that led to the Supreme Court’s decision was Jim Milkey, who was, at the time, the senior environmental attorney in the Massachusetts attorney general’s office.
Milkey, who is now a sitting associate justice on the Massachusetts Appeals Court, had the initial idea back in 2000 that Massachusetts and other states could demonstrate that climate change was harming their residents and that the EPA’s refusal to act to prevent that harm was contrary to its obligation under federal law. He soon assembled 11 other states and a number of local governments and non-governmental organizations as petitioners and filed the suit that went all the way to the high court and into the annals of American history.
In a terrific 2010 interview by the Yale Climate Media Forum, Milkey remembered his now legendary exchange with Justice Antonin Scalia that made all the news reports on that day’s oral arguments.
Justice Scalia had been using the term “stratosphere” instead of the accurate one, in the context of the argument, “troposphere”, and Milkey took the risk of violating the court’s informal rules by correcting him. Justice Scalia retorted, “Troposphere, whatever. I told you before that I’m not a scientist. That’s why I don’t want to deal with global warming, to tell you the truth.”
Milkey had an illuminating memory of the exchange: “One thing that’s fascinating about that line is the people who heard the line spoken inside the courtroom had a very different reaction than those who saw it in print. And the common reaction I got from people who saw it in print was ‘How cavalier a statement!’ Those who saw it live, including me, thought it was self-deprecating. He was a) making a joke, and b) he was making a joke at his own expense.”
We can see in Milkey’s reflection that he is a person of integrity and perspective, and that served him well as he stood up before the most intimidating of audiences in 2007, carrying the heavy responsibility of representing multiple states, jurisdictions and organizations – and ultimately, our planet’s seven billion people – and delivered a winning argument.
As we struggle to galvanize a national response commensurate with the overwhelming body of science – and observed data – that documents human-induced climate disruption, it is heartening to remember that the U.S. Supreme Court acted responsibly in 2007 when confronted with hard evidence and the letter of the law.
A 5-4 decision from the high court can feel like an awfully thin reed on some days, especially when the U.S. Congress has failed to address the climate crisis in a meaningful way, even in the face of mounting evidence that our farmers, ranchers, fishermen, loggers, ski area operators and coastal property owners will be profoundly harmed by the fossil fuel- driven changes in our climate in the coming decades.
However, well-designed democracies have ground rules that help ensure that leaders can deliver a final decision even on controversial matters. Thus, a split 5-4 decision is every bit as binding as a unanimous 9-0 decision and, for that, we can be very thankful on this fifth anniversary of Massachusetts vs. EPA.