Richard J. Lazarus - The Rule of Five

October 20, 1999. Joe Mendelson pulled his desk drawer open and reached inside. The several-hundred-page petition he had drafted more than a year earlier was still there, as he knew it would be. For all those months, the decision to fileor nothad weighed on him. It was a classic late October autumn day in the nations capital, in the low fifties, sunny with a sporadic light drizzle. But this was not just any day. It was the day Joe Mendelson edged himself to the point of acting.

Mendelson was a public interest attorney working for the International Center for Technology Assessment, a big name for a tiny, shoestring environmental organization no one had ever heard of. In his early thirties, married with two young children, he was still youthfully fit and could easily have passed for a decade younger. Until recently his Capitol Hill office had consisted of a small bedroom overlooking an alley in a small townhouse across from a liquor store. Calling it an office may in fact be too grand; he kept his file cabinet in the bedroom closet. A city housing inspector certainly hadnt been impressed.

A few weeks earlier Mendelson and his four colleagues had relocated to an even smaller suite of rooms in a nondescript building on the Hill after the inspector had questioned the legality of their office in a residential neighborhood. As Mendelson sat staring into his desk drawer, he knew his job lacked the status and trappings of the better-heeled national environmental public interest groups. But he also knew he lacked their bureaucratic constraints. He could decide largely on his own whether legal action was needed. And he had decided that the need for such action now was obvious. The consequences, however, were far less so.

The first generation of environmental public interest lawyers, in the 1970s and 1980s, had focused on easily visible and immediately harmful industrial air and water pollution. But Mendelson, who began law school in 1988, became a public interest lawyer just when alarms were beginning to sound about the less visible, more complex, and potentially catastrophic problem of what was then called global warming. In June 1988, only a few months before his first day of classes, James E. Hansen, a National Aeronautics and Space Administration scientist, testified before Congress that the earth was warming as a result of the greenhouse effectthe absorption in the upper atmosphere of heat from the sun by certain human-produced gases. Hansen spoke in the measured words of a scientist, but with such ominous and dramatic import that the New York Times published a front-page article on his testimony and included a graph produced by Hansen and a colleague showing that the four warmest years in the past century had all occurred in the 1980s. The greenhouse effect is here, Hansen declared.

When Senator Al Gore from Tennessee was elected vice president in November 1992, environmentalists had reason to be pleased. Gore had written the book on climate changeEarth in the Balanceproposing an ambitious, if not radical, Global Marshall Plan to avert environmental devastation.

What was more, the environmentalists knew that Clinton had chosen Gore to be his running mate not despite Gores boldly stated environmental ambitions but because of them. Clinton picked Gore in large part because Gores book bolstered his chances of winning the presidency. He knew that his own environmental record as governor of Arkansas was anything but clean. Indeed, it bordered on the abysmal, which is why founding members of the Sierra Clubs Arkansas chapter resigned in protest when the national Sierra Club organization endorsed Clinton for president.

Governor Bill Clintons administration had burned toxic waste at Superfund hazardous waste sites, failed to crack down on massive water contamination caused by the states powerful hog and poultry industries, declined to prevent clear-cutting of forests, and proposed a water quality standard for the toxic chemical dioxin that was one hundred times less restrictive than the standard recommended by United States Environmental Protection Agency (EPA).