In a 2007 decision, former Supreme Court Justice John Paul Stevens contended that when Congress passed the Clean Air Act of 1970, “the study of climate change was in its infancy” and it wasn’t until later that decade that the federal government “began devoting serious attention to the possibility that carbon dioxide emissions associated with human activity could provoke climate change.” Even so, the Court found in Massachusetts v. EPA that the Clean Air Act authorized the Environmental Protection Agency to regulate carbon dioxide and other greenhouse gases as air pollutants, because the act was “capacious” in its definition of air pollutants.
A 2022 decision by a starkly different Supreme Court all but reversed the Massachusetts decision, greatly curtailing the EPA’s ability to limit power plant emissions of carbon dioxide. The basis of the decision in that case, West Virginia v. EPA, involved a new and hotly contested legal theory: the so-called “major questions doctrine” that the current, conservative-dominated Court has adopted. Under that doctrine, Chief Justice John Roberts wrote, there must have been “clear congressional authorization” for executive branch agencies such as the EPA to take actions with “vast economic and political significance.” The decision holds that there was no such authorization, greatly limiting the EPA’s efforts to regulate carbon emissions from power plants.
Considered together, the Massachusetts and West Virginia cases raise an important question: Did Congress understand that regulating air pollutants like carbon dioxide would have vast economic and political impacts when it passed the Clean Air Act more than 50 years ago?
The answer to that question, according to a forthcoming paper in the Ecology Law Review, is clearly “yes.”
What began as a modest inquiry by science historian Naomi Oreskes into what scientists and elected officials knew about carbon dioxide in 1970 ballooned into a years-long investigation that underlies the law review paper, made available to the Bulletin ahead of its expected publication later this month. That investigation, which Oreskes conducted along with other researchers from Harvard and Duke universities, shows that experts long ago recognized the climate-altering impacts of greenhouse gases like carbon dioxide, and that they also knew that regulation of these emissions could have wide-ranging economic impacts. These facts were shared and discussed among White House staffers and high-ranking elected and administrative officials, including the primary architects of the Clean Air Act.
Such conversations were not limited to the halls of power. The paper also reveals the extent to which discussions about carbon dioxide and global warming penetrated popular culture early on. Among those pop culture efforts was a 1958 educational film by Frank Capra (whose better-known movies include Mr. Smith Goes to Washington and It’s a Wonderful Life) called The Unchained Goddess, in which the character Dr. Research explains that the carbon dioxide emitted from factories and automobiles was already warming the atmosphere, and if the polar ice caps melted, one day tourists “in glass bottom boats would be viewing the drowned towers of Miami through 150 feet of tropical water.” The greenhouse effect from carbon dioxide emissions was also covered in My Weekly Reader and other school materials for children.
In February 1969, the beat poet Allen Ginsberg appeared on The Merv Griffin Show, discussing how the proliferation of automobiles and “their excrement” was warming the Earth. The show prompted a concerned citizen to write to US Sen. Henry “Scoop” Jackson of Washington, asking him to contradict this dangerous misinformation. Jackson passed the letter on to presidential science advisor Lee DuBridge, who replied at length, confirming that the greenhouse effect was real and was the result of gases from burning fossil fuels. “We are, in a word, performing a gigantic experiment on ourselves,” DuBridge wrote. “It seems to me of great importance that we know the meaning of this experiment and its possible outcomes before discovering them too late and perhaps to our sorrow.”
Shortly thereafter, DuBridge floated the idea of a “polluter’s tax” on Meet the Press. “I don’t like to be a calamity howler, but sometimes it takes a few calamity howlers to wake people up to the fact that there are serious problems and to arouse people to the point where they are willing to do something about it,” he told television viewers. “I think we are at that point now.” That point was 1969.
In the following interview, Oreskes and I discuss the origins of her investigation and how its conclusions about the history of climate science could impact future environmental court cases.
Jessica S. McKenzie 