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At the close of 2015,
on a chilly
December morning in Paris, 195 nations committed, for
the first time, to cut greenhouse gas emissions to avoid
the most dangerous effects of climate change. The Paris
Agreement set ambitious goals to limit temperature rises
and hold governments accountable for reaching those
targets, signaling a potential end to the era of fossil fuels.
Reports of the accord traveled quickly, resounding
especially loudly in Boston, where Jim Milkey ’74, the
man who galvanized the U.S. government into action
on climate reform, digested the news.
“I’m extremely pleased and proud,” says Milkey, now
an associate justice of the Massachusetts Appeals Court,
“to the extent we were able to play any background role
to the agreement.”
That said, Milkey is adamant that
the climate fight is far from over.
“I do have a latent fear that people
will now think, ‘Oh, we don’t have
to worry about this because the
problem’s been solved,’” Milkey says.
“It’s going to take so much to go from
here to there. The battle has really
just begun.”
The challenges of catalyzing en-
vironmental reform are not lost
on Milkey. Nearly a decade ago,
distraught by the political inertia
of climate reform, Milkey, then
an environmental lawyer in the
Massachusetts Attorney General’s
Office, came up with a radical idea
to sue the Environmental Protection
Agency (EPA) to begin regulating
greenhouse gases.
In 2006, with a team of some 50
other attorneys representing other states and environ-
mental groups backing him, Milkey did just that, arguing
– and winning – the landmark
Massachusetts v. Environ-
mental Protection Agency
case before the U.S. Supreme
Court. The 5-4 ruling laid the groundwork for environ-
mental milestones, from the EPA’s 2009 endangerment
finding and its imminent regulation of carbon dioxide-
emitting industries, to the aforementioned 2015 Paris
Agreement. The decision not only legitimized the causes
and concerns of environmentalists, but spelled out, in no
uncertain terms, the EPA’s legal obligations with respect
to climate change.
“
Massachusetts v. EPA
is widely considered to be envi-
ronmental law’s
Brown v. Board of Education
,” Harvard
law professor Richard Lazarus told
Alumni Horae
. “It’s
the single most important environmental case the Supreme
Court has ever decided.”
History
To fully understand the impact of
Massachusetts v. EPA
requires a look back at our country’s approach to air
pollution. It begins in 1955, with the Air Pollution Control
Act, which declared that air pollution was a danger to
public health and welfare and provided funds for federal
government research. The first federal legislation to
actually pertain to “controlling” air pollution was the
Clean Air Act of 1963, which formed a federal program
within the U.S. Public Health Service and authorized
research into techniques for monitoring pollution.
The Clean Air Act (CAA) is one of the United States’
most influential modern environmental laws. Major
amendments to the law, requiring regulatory controls
for air pollution, passed in 1970, 1977, and 1990. The
1970s amendments broadened the
federal government’s authority and
enforcement, requiring comprehen-
sive federal and state regulations
for both stationary pollution sources
(fossil fuel burning power plants,
petroleum refineries, petrochemical
plants, food processing plants, and
other heavy industrial sources) and
mobile pollution sources (air pol-
lution emitted by motor vehicles,
airplanes, locomotives, and other en-
gines and equipment). The EPA was
established on December 2, 1970, to
consolidate the federal government’s
new environmental responsibilities,
most notably by writing and enforc-
ing environmental regulations on
laws passed by Congress.
Another crucial player in this story
also emerged from the 1970 amend-
ments: Section 202, which granted the EPA the power
to regulate “any air pollutant” that may “reasonably be
anticipated to endanger public health or welfare.” The
decision was detailed in a 1979 article by David P. Currie
in the
University of Chicago Law Review
. In 1998, during
Bill Clinton’s presidency, EPA General Counsel Jonathan
Cannon determined the CAA, specifically Section 202,
gave the agency authority to regulate carbon monoxide.
“Generally, the Act authorizes EPA to regulate a sub-
stance if it is an ‘air pollutant’ and if the administrator
finds that emissions of it endanger public health or
welfare,” wrote Cannon in an article published in the
Virginia Law Review
. “I concluded that CO2 and other
greenhouse gases qualified as air pollutants when emitted
into the air and were regulable upon a finding by EPA
that they met the endangerment standard.”
In 1999, relying on Cannon’s legal opinion, a coalition
of environmental groups petitioned the agency to regu-
late greenhouse gas emissions from new motor vehicles,
because they contribute to global warming. Climate
“I do have a latent
fear that people
will now think,
‘Oh, we don’t have
to worry about
this because
the problem’s
been solved . . .’”
