Interview of the Week: Richard Lazarus on Earth Day and Environmental Law and the Courts

Richard is the Howard and Katherine Aibel Professor of Law at Harvard Law School, and a leading expert on U.S. environmental laws.

ODP:  In less than a week, it will be the 50th Anniversary of Earth Day, which led to landmark laws like the Endangered Species Act, NEPA, and the Clean Water Act.  Leaving aside this President’s policies, how would you assess the success of these laws given the environmental injustices that have persisted since their passage?

RL:  In significant ways, those environmental laws enacted by Congress, beginning with NEPA and the Clean Air Act in 1970 and ending with the Clean Air Act Amendments of 1990 have been remarkably successful. They allowed the nation’s economy to grow by orders of magnitude over the past fifty years without the kind of devastating pollution and natural resource destruction witnessed by many other countries during that same time period. For that reason, those laws deserve celebration. But not unqualifiedly so. As your question acknowledges, not everyone was made better off by those laws and our nation’s overall success was sometimes achieved by shifting pollution to low-income communities and communities of color within the United States and in other parts of the world. True environmental protection can be achieved only once those resulting environmental injustices are fully and fairly addressed.

ODP:  You have recently written a fantastic book about the landmark case of Massachusetts v. EPA, in which the Supreme Court upheld the agency’s authority under the Clean Air Act to regulate greenhouse gas emissions.  How big was that decision, and is it at all vulnerable given the increasingly conservative makeup of the federal judiciary and especially the Supreme Court?

RL:  The book, The Rule of Five – Making Climate History at the Supreme Court, tells a hopeful story about what a few committed people can accomplish to transform our nation’s laws to address the greatest environmental problem humankind has ever faced: climate change. The Supreme Court’s decision in Massachusetts was enormously important because it provided the Obama Administration with the authority it needed to enact a series of sweeping regulations designed to slow and reduce U.S. greenhouse gas emissions, which in turn led to the historic Paris Climate Agreement in 2015. It is no overstatement that absent Massachusetts, Paris would never have happened. The increasingly conservative makeup of the federal judiciary does not threaten the central ruling of Massachusetts, which is that the federal government has the authority to reduce greenhouse gas emissions. But it most certainly does threaten whether that authority can be exercised as ambitiously and quickly as will be necessary if we are to reduce the threat of climate change in time to avoid its worst consequences.

ODP:  In an ironic twist on states’ rights and federalism, state laws are increasingly setting a higher environmental standard than corresponding federal law.  Should these laws be allowed to stand or be pre-empted by federal law?

RL:  The more demanding, ambitious state laws should most certainly not be pre-empted. With very limited exceptions, a longstanding signature of federal environmental protection statutes is that they provide a floor, but not a ceiling in defining the nation’s environmental protection standards. States have always been free to enact more demanding laws, whether addressing air or water pollution, or hazardous waste disposal. The only limited exception has been for motor vehicles controls for the practical reason that car manufacturers are not able to mass-produce fifty different vehicles to meet potentially varying pollution requirements for each of our fifty states. But, beginning with the Clean Air Act of 1970 enacted a half-century ago, federal law has always permitted California to adopt motor vehicle air pollution emission requirements more demanding than those of the federal government and other states have been allowed in turn to adopt California’s tougher motor vehicle standards. That fair compromise should be maintained, notwithstanding the Trump Administration’s current efforts to deny states that longstanding authority.

ODP:  The Trump Administration’s rollbacks of environmental rules have generated a rash of cases making their way through the courts.  Which of those cases makes you the most concerned?

RL:  This is a hard question to answer. The opposite of the classically impossible question asked of parents: which of your two children is your favorite? The Trump Administration has engaged in such stunningly deep, wide, and irrational efforts to roll back environmental protections that it is hard to know where to begin. But, as a general matter, I would have to say that the most concerning necessarily relate to climate change because they are the most time-sensitive. As the world’s climate scientists have been warning us for three decades, the longer we wait to reduce global greenhouse gas emissions, the exponentially harder it will be to reduce them in time to avoid climate change’s most catastrophic consequences. Every year of the Trump administration has, for that reason, been immensely costly.

ODP:  Of all the climate change cases pending, which one should make the fossil fuel industry most concerned?

RL:  There is no one case, and that is important to understand. The idea that a single case advancing some brand new legal theory provides the equivalent of the silver bullet to defeat the fossil fuel industry in one fell swoop is largely a myth. But that does not mean the fossil fuel industry has no reason for concern. Just the opposite. The fossil fuel industry has much to fear from the cumulative effect of the hundreds of cases already being brought and capable of being brought by national, regional, and local environmental groups, citizens, and states across the country based on existing environmental laws. These suits can ensure that the fossil fuel industry is forced, finally to comply fully with existing laws that limit harmful air and water pollution and the unsafe disposal on land of wastes from their mining, transportation, combustion activities. The fossil fuel industry knows that successful citizen suit enforcement, especially if rejoined by federal law enforcement authorities in a new administration, would eliminate the enormous subsidy the industry has too long enjoyed in the absence of statutory compliance and, absent that subsidy, fossil fuel would not long be able to compete in the market place with renewable and less polluting sources of energy.

ODP:  Bonus:  Given the fast and furious way the Trump Administration has worked to tear down environmental protections, how well have they succeeded thus far?  If the President is re-elected, will there be anything left of them four years from now?

RL: To date, the Trump Administration has fortunately enjoyed remarkably little success that cannot be fairly quickly reversed by the next Administration that comes into office in January 2021. By repeatedly overreaching, and by declining to heed the expert counsel and advice of career scientists, economists, and lawyers within the federal government, the Trump Administration has repeatedly stumbled in crafting regulations aiming to repeal the work of the Obama Administration. They have already lost a remarkable number of cases in the federal courts. Should Trump be defeated in the election this November, I would anticipate that the regulatory handiwork of his appointees at EPA, Interior, and other important agencies would have a short half-life. Their greatest, longer-lasting harm would likely have been, in addition to the delay in addressing climate change already discussed, the devastation to the career ranks of the experts within those agencies upon whose skills our nation has long depended. But, that is also why it is so important that President Trump is limited to one term. Congress can effectively prevent any formal changes to the landmark environmental protection laws themselves but their administration still requires the kind of dedication to environmental protection the Trump Administration plainly lacks.

Thanks so much, Richard, for all your work teaching and shaping our country’s environmental laws.  The book — The Rule of Five – Making Climate History at the Supreme Court is a great read for anyone who cares about tackling the climate crisis.   

To Go Deeper: Click here for the full interview on the Our Daily Planet web site, and you can watch Professor Lazarus’s zoom talk about his book hosted by the Politics & Prose bookstore in Washington, D.C.

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