Judging by recent Supreme Court decisions, half a century ago the world didn’t know much about climate change.
In 2007, the court ruled that the Clean Air Act of 1970 gave the Environmental Protection Agency the authority to regulate carbon dioxide emissions. Former Justice John Paul Stevens wrote:“When Congress enacted these provisions, climate change research was still in its infancy.” opposite opinion In a 2022 case examining a similar question, Justice Elena Kagan argued that when Congress enacted the act in 1970, lawmakers had given the EPA flexibility to adapt to changing times and address problems it could not have foreseen, such as climate change.
Naomi Oreskes, a historian of science at Harvard University, thought these comments were a sign of how little people understood about the past. “I remember just feeling embarrassed about it,” she says. Indeed, at the time of the first Earth Day in 1970, people were more worried about the immediate effects of smog than the long-term climate-change effects of burning coal and oil. But Oreskes knew that scientists had been trying to understand the effects of carbon dioxide on Earth’s climate since the late 19th century. So she set about writing what she thought would be a short paper to correct the record.
Along the way, Oreskes and other researchers from Harvard and Duke universities uncovered lost history. As they dig through mountains of historical documents, they find that before 1970, many people, not just scientists, were concerned about global warming. “We found a ton of discussions by scientists, members of Congress, and members of the executive branch,” Oreskes says. “The more we looked, the more we found.”
Her paper has ballooned into a 124-page analysis, soon to be published in the journal Ecology Law Quarterly, and this is just a small part of her findings: Oreskes has uncovered more than 100 examples of congressional hearings that examined CO2 and the greenhouse effect before the adoption of the Clean Air Act, evidence she will detail in part two.
The study adds weight to the argument that Congress intended to give the EPA broad authority to regulate pollution, including greenhouse gas emissions. The issue, the authors say, has become even more important after the 2022 West Virginia v. EPA decision limited the agency’s ability to regulate power plant emissions. The Supreme Court’s conservative majority introduced a new argument, called the “leading question doctrine,” which says a very clear statement from Congress is needed to authorize regulations that have “enormous economic and political implications.”
Oreskes’ paper shows that lawmakers debating the Clean Air Act in 1970 recognized that tackling climate change could have significant economic impacts on energy production and the auto industry, for example. Oreskes hopes that his paper will “dispel the widespread myth that the Clean Air Act has nothing to do with carbon dioxide” and spark debate among lawyers, judges and legal scholars.
Climate change was already a federal concern by the mid-1960s, according to a new analysis: A 1965 National Science Foundation report noted that the ways in which humans were unintentionally changing the world through urban development, agriculture, and fossil fuels “are beginning to have such an effect on the weather and climate over widespread areas and ultimately on the entire planet.”
And the science was well understood by many lawmakers, Oreskes and her colleagues found in their research. The Papers of Edmund Muskiewas a Democratic senator from Maine at Bates College who helped write the Clean Air Act. Documents show that Muskie spoke at length with scientists about climate change, and his staff followed news reports on the issue closely. In 1970, Muskie warned his fellow senators that unchecked air pollution “could lead to irreversible changes in our atmosphere and climate.” (The Clean Air Act allows the EPA to regulate air pollutants that threaten public health, including their effects on weather and climate.)
These Supreme Court decisions have made climate change even more difficult to solve.
Scientists recognized carbon dioxide as a pollutant in the 1960s, but it was a different kind of pollutant from the gases and particulate matter that cause thick smog in the atmosphere. A dimly lit city in the daytimeBy 1970, President Richard Nixon’s Task Force on Air Pollution declared in its report that “the greatest impact of air pollution on the survival of mankind on the planet is its effect on the Earth’s climate.”
At the Federal Archives near St. Louis, Oreskes and her team also unearthed documents from the National Air Pollution Control Administration, a federal agency that was created in 1968 and later merged into the EPA. “If very few people even knew that NAPCA existed, they’ve been completely forgotten,” Oreskes said. The agency’s director, John Middleton, testified at congressional hearings ahead of the Clean Air Act, discussing carbon dioxide and the potential economic impacts of regulations, she said.
Dire warnings of climate change were widespread, and in 1958, famed film director Frank Capra made an animated film. The Unleashed Goddesswarned that a rise in temperature of just a few degrees would cause sea levels to rise, allowing tourists in glass-bottom boats to “see the sunken buildings of Miami through 150 feet of tropical water.” The program was broadcast to an estimated 5 million children in classrooms across the country. 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 not thought to be concerned with environmental issues, detailed the science of climate change and advised “not to lease land at current sea level for 99 years.”
Oreskes’ paper aims to provide the history and context the Supreme Court’s leading question doctrine seems to require. Despite the mountain of historical evidence, UCLA environmental law professor Anne Carlson said she doubts the Supreme Court will take it into account. “If the Supreme Court continues to show the same hostility it has shown to environmental regulation, I think it could find a way to do so regardless of whether there is evidence that Congress understood carbon dioxide to be a pollutant under the Clean Air Act,” said Carlson, who helped lead fuel economy regulations in the Biden administration. She explained that conservative justices have plenty of other arguments they can use to strike down regulations.
Oreskes acknowledges it’s “an uphill battle with the courts right now,” but says the paper will help bolster the case for lawyers trying to move climate change litigation forward.
Why has so much history been forgotten? Oleskus points to “a general historical amnesia in the United States.” Politician Adlai Stevenson wrote: Once placed“The problem with Americans is that they don’t read the minutes of the last meeting,” Olesk says. Even people in the environmental community seem to have forgotten what happened, perhaps because the EPA in the 1970s focused its limited attention on acute pollutants that posed an immediate threat to public health, and relegated its earlier concerns about CO2 to the archives, Olesk says.
