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After working tirelessly for six years, Milkey was ready
to make his case to the Supreme Court. “It was certainly
the most challenging professional thing I’ve ever done in
my life,” he says. “Supreme Court practice is different.
I had done many appellate arguments before that, but
never in the U.S. Supreme Court, and it’s a remarkably
different experience in terms of the difficulty of the task.”
Supreme Court arguments are typically 30 minutes
per side, Milkey explains.
“You’re up there for a half hour and, for most of that
time, you’re answering questions. You have to prepare
what you’re going to say and then you get interrupted
almost immediately by questions.”
In the course of his argument, Milkey faced 48 questions.
“I counted afterwards,” he recalls, chuckling. “To prepare,
you essentially have to think up every possible question
you might be asked, and come up with a one-to-two
sentence response that, if possible, perfectly addresses
the question and allows you to pivot
back to what you had been planning
on saying.”
After months of exhausting
preparation, by the time the day
arrived, Milkey described it as
“something of an out-of-body
experience.”
“We are not asking the court to
pass judgment on the science of
climate change or to order the EPA
to set emission standards,” Milkey
assured the Supreme Court justices
the morning of November 29, 2006.
And then, in spite of the 48 interrup-
tions, Milkey went on to give “just
about the single best oral argument
given in an environmental case in
the U.S. Supreme Court,” according
to Lazarus. “I teach it every year to
my students at Harvard.”
In addition to correcting Justice
Antonin Scalia not once, but twice, during the assoc-
iate justice’s forceful line of questioning, Milkey posed
a crucial question to the Court: Why is it unreasonable
for the EPA to wait for better scientific proof on global
warming? Pointing out that, when the EPA began to
regulate lead, there was also scientific uncertainty.
“What is it in the law,” he asked, “that says a person
cannot go to an agency and say ‘We want you to do
your part?’”
On April 2, 2007, the justices ruled that not only did
the EPA have the authority to regulate heat-trapping
gases in automobile emissions, but also that the agency
could not sidestep its authority to regulate the green-
house gases that contribute to global climate change
unless it could provide a scientific basis for its refusal. In
a 5-4 decision, the justices sided with Milkey. He had won.
Massachusetts v. EPA
is widely considered a landmark
Supreme Court case. “What’s less well known but no less
true is that the case would not have happened without
Jim Milkey,” Lazarus says emphatically in his interview
with
Alumni Horae
. “Jim Milkey did a phenomenal job
on a very tough case. Even getting the Supreme Court
to take the case was somewhat Herculean – it was one
of the first times it had granted a case like that in sev-
eral decades. And then winning the case…his argument
before the court was just spectacular.”
Aftermath
“The thing that made me want to become a lawyer was
actually a class I took at St. Paul’s called Law and Gov-
ernment,” Milkey recalls. “The course was really about
the use of litigation as a tool of social change. I’m not
exaggerating to say that it was really
that course that inspired me to
become a lawyer. And that planted
the seed that blossomed three
decades later.”
Not long after the
Massachusetts
v. EPA
ruling, Milkey was appointed
to the Massachusetts Appeals Court
by Governor Deval Patrick. Now a
judge, he rarely works on environ-
mental issues of any sort, let alone
climate reform. Describing his
career change, Milkey says, “In a
real sense, I had accomplished as
much as I was going to in my old
role, and it was time to try some-
thing new, and let people who were
more at the early stages of their
careers take over the good fight
on climate change.”
Milkey waits a beat, adding
“...which is a short version of
saying I was pretty burnt out. I was never the kind of
person who either wanted to become a litigator or had
any dream of arguing in the U.S. Supreme Court. This
all just kind of happened.”
“I’m proud of the small part we were able to accomplish,
but mindful of the enormity of the task ahead,” he says.
“I mean, we really haven’t accomplished anything
until greenhouse gas emissions start to decline
in a significant way, and we are not there yet.
It’s a topic on which it’s very easy to get
overwhelmed. I was very happy to do
what we were able to do and then leave
the battle to others, although I have to
say it’s an odd thing to know the first
line of your own obituary.”
“What is it
in the law,”
he asked, “that
says a person
cannot go to an
agency and say
‘We want you to
do your part?’”
