To judge by recent Supreme Court decisions, the world didn’t know much about climate change half a century ago.
In 2007, when the court ruled that the Clean Air Act of 1970 gave the Environmental Protection Agency the flexibility to regulate carbon dioxide emissions, wrote former judge John Paul Stevens, “When Congress enacted these provisions, the study of climate change was in its infancy.” Write a difference of opinion in a 2022 case that looked at similar questions, Justice Elena Kagan argued that in 1970, when Congress created the law, lawmakers gave the EPA the flexibility to keep up with the times and tackle problems (ie climate change) that could not be expected.
Naomi Oreskes, a historian of science at Harvard University, saw those opinions as a sign of how little people understood about the past. “I remember just being upset by that,” she said. To be sure, at the time of the first Earth Day in 1970, people were more concerned about the immediate effects of smog than the long-term, climate-changing effects of burning coal and oil. But Oreskes knew that scientists had been working to understand how carbon dioxide affected the global climate since the late 19th century. So she began writing what she thought would be a short paper to set the record straight.
In the process, Oreskes, along with other researchers at Harvard and Duke University, uncovered a lost history. As they searched numerous historical documents, they found that many other people, not just scientists, were concerned about a warming planet in the years before 1970. “We have a universe of discussions by scientists, by members of Congress , by members of the executive branch,” Oreskes said, “and the more we looked, the more we found.”
Her paper developed a 124-page analysis, which will soon be published in the journal Ecology Law Quarterly. And this is only part one of the findings. Oreskes found more than 100 examples of congressional hearings examining CO2 and the greenhouse effect prior to the passage of the Clean Air Act, evidence she plans to spell out in part two.
The research adds weight to arguments that Congress intended to give the EPA broad authority to regulate pollution, including greenhouse gas emissions — an issue that has become more important, the authors say, in the wake of the West Virginia against EPA decision in 2022 that limits the agency’s ability to regulate power plant emissions. The court’s conservative majority cited a new argument called the “big question doctrine,” which requires a very clear statement from Congress to authorize regulations that have “great economic and political significance.”
Oreskes’ paper shows that when members of Congress debated the Clean Air Act in 1970, they were aware that addressing climate change could have significant economic consequences, for example for energy production and the auto industry. Oreskes hopes the paper will “put the lie to the myth that has been propagated that the Clean Air Act had nothing to do with carbon dioxide” and spur conversations among lawyers, judges and legal scholars.
By the mid-1960s, climate change had already become a matter of concern to the federal government, the new analysis shows. A 1965 report by the National Science Foundation found that the ways in which humans have inadvertently changed the world—through urban development, agriculture, and fossil fuels—“have become of sufficient consequence to alter the weather and climate of large areas and ultimately the entire planet to influence. ”
And the science was well understood by many members of Congress, Oreskes and her colleagues discovered when they looked through the papers of Edmund Muskie, a Democratic senator from Maine who helped write the Clean Air Act, located at Bates College. The documents show that Muskie was deeply involved in climate change discussions with scientists, and his staff closely monitored press coverage of the topic. In 1970, Muskie warned his fellow senators that if air pollution were left unchecked, it would “threaten irreversible atmospheric and climatic changes”. (The Clean Air Act allows the EPA to regulate air pollutants that endanger public health, specifically including effects on weather and climate.)
In the 1960s, scientists generally recognized carbon dioxide as a pollutant, although a different kind of pollutant than the gases and particles that contributed to thick smog that dim cities in the middle of the day. By 1970, President Richard Nixon’s task force on air pollution declared in a report that “the greatest consequences of air pollution for man’s continued life on earth are its effects on the earth’s climate”.
Oreskes and her team also unearthed documents from the National Air Pollution Control Administration — a federal agency established in 1968, later folded into the EPA — at a federal records repository near Saint Louis. “Almost everyone has completely forgotten about NAPCA, if they ever knew it existed,” Oreskes said. The head of the agency, John Middleton, testified in congressional hearings leading up to the Clean Air Act, discussing carbon dioxide and the potential economic impact of regulations, she said.
Ominous warnings of climate change have also reached the wider public. In 1958, Frank Capra, the famous filmmaker, produced an animated film, The Unchained Goddess, who warned that just a few degrees of temperature rise could cause seas to rise so that tourists in glass-bottomed boats would one day see “the drowned towers of Miami through 150 feet of tropical water.” It was shown to nearly 5 million children in classrooms across the country. On The Merv Griffin Show in 1969, Americans were warned that a rapidly warming Earth could melt the polar ice caps. The following year, an article in Sports Illustrated, a magazine seemingly far removed from environmental concerns, detailed the science of climate change and advised people “not to take 99-year leases on properties at current sea level.”
The Oreskes paper aims to provide the history and context that the Court’s leading questions doctrine appears to require. Despite this flood of historical evidence, Ann Carlson, an environmental law professor at UCLA, says she doubts the Supreme Court will consider it. “I think if this court continues to display the hostility it has shown toward environmental regulation, it may find ways to do so, whether or not there is evidence that Congress understood that carbon dioxide is a pollutant. under the Clean Air Act,” Carlson said. , who previously directed fuel economy regulations for the Biden administration. The conservative justices have many other reasonings they can use to strike down regulations, she explained.
Oreskes admits it’s “an uphill battle with the current court,” but says the paper will help strengthen the arguments of lawyers working to advance climate causes.
Why has so much of this history been overlooked? Oreskes pointed to the “general historical amnesia of Americans.” Like the politician Adlai Stevenson set once, “The problem with Americans is that they haven’t read the minutes of the previous meeting.” Even people who work in environmental protection seem to have lost track of what’s happening, Oreskes said, perhaps because the EPA of the 1970s focused its limited attention on the acute pollutants that pose an immediate threat to public health — which the previous have hidden concerns about CO2. in archives.
