Mr. Mass v. EPA: An Interview with the Man Who Put Climate Change on America’s Legal Map

BOSTON, MA. — As the EPA inches closer to regulating greenhouse gas emissions under the Clean Air Act, the potentially titanic implications of James Milkey’s little idea are starting to dawn on many climate policy watchers and energy interests across America.

Senators from coal states and beyond are threatening to block the EPA controls. Industry groups are lining up to sue the agency. The Obama administration — with no energy and climate bill anywhere in sight — is bracing for what could surely become a huge fight over measures that will be tarred by opponents as heavy-handed and economically harmful.

Come January, EPA is set to begin the first phase of its new regulations.

And tucked away on the third floor of the John Adams Courthouse on Beacon Hill in Massachusetts, the man who set in motion this chain of events will be observing from the sidelines.

As the one-time top environmental lawyer in the Massachusetts Attorney General’s Office, Milkey formulated and first pushed the idea of suing EPA to contest its decision that it could not regulate greenhouse gases. With a team of some 50 other attorneys representing other states and environmental groups backing him, he argued and won the landmark Massachusetts v. EPA case before the Supreme Court. That 5-4 ruling in 2007 opened the door for EPA’s 2009 endangerment finding and its imminent regulation of carbon dioxide-emitting industries.

Now a sitting Associate Justice on the Massachusetts Appeals Court, Milkey still takes a keen interest in how the climate debate is playing out. The 53-year-old justice sat at his desk in his courthouse office for a recent interview, holding forth on everything from Clean Air Act legal intricacies to climate change media coverage and public opinion shifts. A large artist’s sketch of the Supreme Court oral arguments in the Mass v. EPA case loomed behind him on the wall.

Skeptics’ Efforts … ‘Extremely Depressing’

Milkey calls recent efforts by skeptics to tarnish climate science “extremely depressing.” And over the last year America has seen, he laments, “a resurgent effort of the industry groups to try to win everything …” Still, he notes, there is a bright spot.

An artist’s rendering of Supreme Court oral arguments in Mass v. EPA, Nov. 29, 2006. The picture sits on the wall of James Milkey’s courthouse office.

“The good news, if there’s any good news,” he says, “is that the current EPA is doing its best to tackle the problem with the authority it has.”

Milkey says another climate case, Connecticut vs. American Electric Power, could end up soon in the Supreme Court. It will test a different legal theory than the one he adopted — and it could produce another important ruling. (The press didn’t follow the early stages of Mass v. EPA very closely, Milkey says. Perhaps it’s worth watching this new one.)

It was just about a decade ago that Milkey first began to ponder how to spur the U.S. government to action. In 2000, he took a year away from the state Attorney General’s Office to spend time in Denmark with his wife, a professor then on sabbatical. The germ of the idea came to him during that time. It would take six more years of grueling work — on a schedule that left him exhausted, gray in the face — before he finally appeared before the Supreme Court, presided over by Chief Justice John Roberts, and made his case.

The following is an edited transcript of the recent interview:

Yale Forum: How did the idea of filing this case first come about?

Justice Milkey: [The trip to Denmark] gave me time to think, it gave me a way to think … In Europe at the time, global warming was not only the number one environmental issue, it was really the only issue that people wanted to talk about, the only environmental issue. And it was on the radar screen there in a way that it just wasn’t back in 2000 in America. And that led me to thinking about, ‘Oh my God, this is this big problem. Why aren’t we doing anything about it? And is there a state role here?’ During that same year we saw the 2000 election, and you may remember that both presidential candidates, both major party candidates, pledged to regulate greenhouse gas emissions. And then in March of 2001, the Bush administration famously repudiated the campaign pledge it had made, and cut the legs out from [EPA Administrator] Christie Whitman at a meeting she was at in Italy.

It became very obvious at that time that if anything was going to happen in this sphere, it wasn’t going to be as a result of the federal government. Therefore, when I came back from Denmark in July of 2001, the question was: ‘Was there a state role to try to force some action on this front?’ And this had particular resonance to Massachusetts because we’re a coastal state.

Yale Forum: Talk about the striking back-and-forth you had with conservative Supreme Court Justice Antonin Scalia during oral arguments. You corrected him at one point on his misuse of a scientific term. He then said, “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.”

Justice Milkey: I remember that line. That line was quoted everywhere. I told you about the [scant] press coverage we got when we filed the case. The day that we argued it in the Supreme Court we got unbelievable coverage, as we did obviously when the court issued its opinion. And on the day of the coverage of the argument, that was the line that the papers all quoted.

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.

Associate Justice James Milkey of the Massachusetts Appeals Court in his office.

I have to say if you really follow the oral argument, I corrected him twice. Once was against my own interest where he said 7 percent for a certain figure [U.S. tailpipe emissions and their contribution to global greenhouse gas totals] and I said 6 percent. And all the books tell you never correct a Supreme Court justice unless it’s really important. So I thought long and hard and then when he kept saying stratosphere versus troposphere — for reasons I’m not sure he was alluding to — it actually has some legal relevance, and I thought it was important to clarify that it was the troposphere and not the stratosphere. Which is why the second time I swallowed hard and corrected him.

Yale Forum: What sort of impact did the Mass v. EPA ruling have on the public?

Justice Milkey: What is fascinating first of all, the only press coverage we got between filing the case and the Supreme Court taking the case was the coverage in a couple of places, The New York Times and The Washington Post, of the D.C. Circuit argument and ruling. Otherwise, the case got no press up until that point.

And even though, in some sense, part of the whole goal was to get the Supreme Court to take the case, even I underestimated the public interest in the case once they took it. And in thinking about that issue, it strikes me that the U.S. Supreme Court plays a very special role that, up until that point, I had not fully appreciated. In terms of deciding a lot of the major issues of our time — be it abortion or the death penalty or deciding presidential elections — it has a place in the American zeitgeist that you just won’t see elsewhere. If you ask someone on the streets of Copenhagen to name a member of the Danish Supreme court, I don’t think they’d be able to name a single person.

Yale Forum: How did the press do in covering the case?

Justice Milkey: When the Court finally ruled on the case and we prevailed, it was really interesting to compare the headlines against the holding of the case. Because a narrowly crafted, accurate telling of what the Supreme Court did would be along the lines of ‘Supreme Court rules EPA has the authority to regulate greenhouse gases and decides that in determining not to use that authority EPA used improper criteria, and the court remanded the case back to EPA for reconsideration.’

That of course was not what the headlines said. They were more along the lines of ‘Supreme Court declares global warming to be a major problem, repudiates Bush administration, orders the president to address the problem.’ And while those sort of headlines, which were screamed around the world, and which I as an interested party checked — I have the Kazakhstan article somewhere, this was during “Borat,” so it was to the great amusement of my family — while those headlines were inaccurate in a technical sense, I think they were accurate in a larger sense. Because the case — ignoring the fine points — the import of the case was the Supreme Court putting its imprimatur on the seriousness of the problem … So there was a larger truth in the technically inaccurate headlines.

Yale Forum: Some say that having EPA do this, as opposed to Congress, is a less-than-ideal approach. What do you make of the current situation?

Justice Milkey: I am pleased to see that the one thing that has moved forward is EPA’s acting to use the authority that the Supreme Court informed them they had. The current EPA has [made] a very serious effort to move forward on the regulatory front. And they’ve done it in a tiered fashion. Obviously, Congress always has the opportunity to override anything that EPA does. The way that the regulatory programs are being laid out is sort of step-wise. And Congress has the opportunity to step in at any point and adopt a different approach, and I have to say that part of me is surprised that Congress hasn’t done that … If there was ever a problem that a cap-and-trade kind of system would work on, it’s this. And therefore most people who think long and hard about what regulatory programs would make sense say, ‘You should have a more comprehensive national if not international approach based on cap-and-trade, or alternatively, some broad-based energy tax.’ But it’s sort of bad having sector-by-sector command and control regulation, which is less efficient …

One of the things we expected coming out of the victory was that industry would be more amenable to a comprehensive cap-and-trade approach. And immediately on the heels of the Supreme Court ruling we got some evidence of that. Namely, if you follow the press statements that the industry trade groups put out immediately upon the victory they said words to the effect of, ‘A more comprehensive approach is necessary.’ And we were all thinking, ‘OK, that’s a good thing.’

But at the same time it hasn’t happened yet. And what you’ve seen over the last year in particular is sort of a resurgent effort of the industry groups to try to win everything and to try to get Congress to repeal the authority that Mass v. EPA said the Clean Air Act provided. Those efforts have not passed yet. Obviously, time will tell.

Yale Forum: What do you make of the public’s views on climate lately?

Justice Milkey: So many people are better suited to answer that question than I am, even if you had asked me when I was in the business. I can say that the kerfuffle of the allegations of fudging the numbers of the research appears to have been quite distracting.

But if you look beyond the surface of those controversies, you realize that the science is still completely there. The fact that the winter last year was a cold one — I think people in the short term were distracted. But if you continue to look at the long-term trends, which is the only proper focus for this question, the evidence is really undeniable that it’s trending in that direction, and if that bears out, we’re all in deep trouble.

Yale Forum: What sort of role can you imagine climate science playing in the courts in future litigation?

Justice Milkey: I know this is going to sound strange, but the debate in the scientific field did not play that big a role in our litigation. And that’s because if you look behind the headlines there really is a consensus. And in terms of the science we relied on, we relied on the science accepted by the Bush administration.

Had you asked someone on the street 10 years ago [whether or not] they think this is a problem, most of them probably would have said ‘no.’ Clearly that number went up over time. But if you look at the science even 10 years ago, again the debate is on such a narrow group of issues. Even the so-called skeptics, most of them concede that temperatures are going up, and it’s just a debate about exactly how much and how big a concern it is. So the remaining debate is so narrow and to a great extent beside the point if you’re a rational policymaker intent on dealing with risk. As a lot of people in the center of this debate would say, “You don’t even need to believe in global warming to think, ‘Oh my God, shouldn’t we at least hedge our bets?’”

I find the debate about the science so depressing because the real issues are completely obscured by people screaming about ‘climategate’ … From what I’ve seen, any infractions that were uncovered were in the most minor and marginal sense, and it doesn’t change any of this consensus. There’s such scandal involved in people’s ability to obscure the seriousness of the problem and to wish it back under the rug. And it’s extremely depressing to me. But the good news, if there’s any good news, is that the current EPA is doing its best to tackle the problem with the authority it has. During the 10 years leading up to last year, all the action, if there was action, was by the states. Right now, it’s the federal government that is leading the charge, as it should be.

John Wihbey

A regular contributor to The Yale Forum, John Wihbey is an editor and researcher at the John F. Kennedy School of Government at Harvard. (E-mail: johnwihbey@gmail.com, Twitter: @wihbey)
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3 Responses to Mr. Mass v. EPA: An Interview with the Man Who Put Climate Change on America’s Legal Map

  1. fred ohr says:

    While most agree that global temps are increasing, many do not. A close inspection of global temperature data bases shows gross inaccuracies, rampant manipulation(see New Zealand) migration of the thermometers toward the equator(ask retirees if its warmer down south) and the movement to lower altitudes and the siting at airports and other locations without any sensible adjustment for Urban Heat Island effects over time. Justice Wilkey has wasted a decade of his public life because of inadequate due diligence.

  2. John Wihbey says:

    Fred, as you suggest with your first line (“most agree”), Mr. Milkey was operating on scientific consensus — the very science the Bush administration had accepted. It’s worth noting that Mr. Milkey’s case merely asked EPA to reconsider its decision that it could not provide oversight of greenhouse gas emissions. It did not force particular measures or curbs. EPA’s subsequent findings of endangerment and particular regulation measures are beyond what he litigated. It seems to me that debating this issue openly in court and trying to figure out what the government’s role should be is hardly a “wasted” effort .

  3. fred ohr says:

    John,
    Come on. If you can’t smell a scam here, your just not tryin’! The government of New Zealand has fired the scientist that buggered the official temp records and he got his training at CRU in the UK. James Hansen and his buddies at NOAA continuously “adjust” historic temp data downward to make recent years look warmer.
    Paleo reconstructions have been cherry picked so that sample sizes allow individual outliers to bias results, always in favor of demonstrating a 20th century warming trend. If one properly accounts for UHI or uses only non-urban thermometers, there is simply NO “20th century warming signal” and thus no AGW. Its all about creating hockey sticks in the climate science community. The American people reject the notion of AGW pretty emphatically and I think they are correct.