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Of the many obstacles to enacting federal regulations on climate pollution, none are more daunting than the Supreme Court. The Obama administration’s efforts to regulate emissions from power plants failed there, and the Biden administration’s attempt will undoubtedly fail there as well.
A soon-to-be-published study aims to inform how courts consider challenges to those regulations by conclusively proving that lawmakers who wrote the Clean Air Act in 1970 knew that scientists considered carbon dioxide to be an air pollutant, and that elected officials were eager to limit carbon dioxide emissions.
The study, to be published next week in Ecology Law Quarterly, combed congressional archives to unearth “extensive and largely forgotten conversations” between “leading scientists, federal agency officials, and members of Congress” and senior staff during the administrations of Presidents Lyndon Johnson and Richard Nixon that detailed what became the widely accepted science that carbon dioxide pollution from fossil fuels builds up in the atmosphere and ultimately warms the Earth’s climate.
The ruling could have important implications in light of established Supreme Court legal principles. Struck Down Naomi Oreskes, a professor of the history of science at Harvard University and lead author of the study, argues that the Obama administration’s coal-fired power plant regulations mean that courts should consider lawmakers’ original intent and the broader context in which the law was passed when hearing challenges to regulations with broad economic and political implications.
“The Supreme Court is suggesting that Congress had no knowledge of the issue at the time and therefore never intended the Clean Air Act to apply to carbon dioxide,” Oreskes said. “We think the evidence shows that’s wrong.”
The research began in 2013, when Oreskes first arrived at Harvard, and she says she got a call from a colleague who asked the question of what Congress knew about climate science when it was crafting the Clean Air Act in the 1960s. She was already a co-author on the book. The suspicious merchantShe knew about the efforts of industry-funded scientists to cast doubt on the dangers of tobacco and global warming, and was familiar with the work of scientists studying climate change in the 1950s. “What I didn’t know was how much they were telling it, especially to Congress,” she said.
Oleskus hired an investigator to investigate, and what they found was a surprise to her: the evidence they uncovered included articles compiled by the staff of the law’s chief architect, minutes of science conferences attended by members of Congress, and correspondence between Johnson and Nixon’s constituents and science advisers. The materials included documents related not only to environmental activists but also to other prominent members of Congress.
“These were people who were at the very center of power,” Oreskus said.
When Senator Edmund Muskie, Democrat of Maine, introduced the Clean Air Act in 1970, he warned his colleagues that unchecked air pollution “continues to threaten irreversible atmospheric and climatic changes.” The study shows that his staff was gathering reports providing the scientific evidence to back up his statements. He and other senators attended a 1966 conference that featured a discussion of carbon dioxide as a pollutant. At that conference, Senator Gaylord Nelson of Wisconsin warned about carbon dioxide pollution from the burning of fossil fuels, saying it “is believed to have a dramatic effect on the climate.”
The paper also cites a letter sent to Washington Sen. Henry “Scoop” Jackson in 1969 by a constituent who had seen poet Allen Ginsberg warn of melting Arctic ice sheets and spreading global flooding. The Merv Griffin Show. The voter was skeptical of the message, calling Ginsberg “one of America’s great weirdos” and calling on the senator to correct the record: “After all, this show is watched by millions of people at a wide range of intelligence levels. The possibility that a charge like this could be even partially accepted, even coming from Allen Ginsberg, is dangerous.”
