Individuals Making a Difference

Two stories of the unknown environmental advocates behind major Supreme Court decisions.

My students often wonder whether they can actually make a difference. I like to tell them the story of Joe Mendelsohn.  Mendelsohn, who worked at a tiny, obscure non-profit, decided that EPA needed to address climate change. His efforts, recounted in a book by Richard Lazarus, led to the Supreme Court’s blockbuster opinion in Massachusetts v. EPA. Three decades earlier, a class project by five law students had led to a major win on standing, though a loss on the merits. A new book by Neil Proto, one of the participants, tells their story and that behind the Supreme Court’s rulings.

No one really thought that Mendelsohn could win when he petitioned EPA to regulate greenhouse gases from new cars and trucks. Even leading environmental groups discouraged his campaign, afraid of establishing a bad precedent if he failed. In the end, however, they came on board, along with several state governments. Mendelsohn was not the only hero of the story, of course. The author of the Supreme Court opinion, Justice John Paul Stevens, fought a masterful campaign to lock down the vote of the swing Justice, Anthony Kennedy.

The story of the five law students was, if anything, more surprising. Their professor, John Banzhaf, was one of the early advocates of what we now call clinical education. The class was not Environmental Law, a course that barely existed, but Unfair Trade Practices. The five students decided to take on a project about railroad rate regulation and recycling. Banzhaf had told them that having a good name for their group would help with the media. After some discussion, they came up with Students Challenging Regulatory Agency Procedures (SCRAP).

It was author Proto who came up with the factual allegations behind the group’s standing claim. They argued that a rate increase for scrap materials but not raw materials would reduce recycling, lead to environmental harm from resource extractions, and result in more trash in parks and streets. These effects would allegedly impact the students, thus giving them standing, On the merits, the students argued that the government had utterly failed to comply with NEPA, then a very new statute. The students won the standing argument, but would later lose on the NEPA claim. (No shame in that, however. Even decades later, no one has ever won a NEPA claim in the Supreme Court.) Their standing victory launched a period of easy access to court by environmentalists, an era that ended only after Ronald Reagan remade the Supreme Court.

The details of these stories are less important than the moral: It is indeed possible for individuals to make a difference, even at the highest level of our legal system. Not being a famous, powerful person is no excuse for inaction.

Litigation, Massachusetts v. EPA, NEPA, SCRAP decision, standing, Supreme Court