Climate Change and the Clean Air Act of 1970 Part I: the Scientific Basis

In Massachusetts v. EPA, the Supreme Court held that the 1970 Clean Air Act granted the Environmental Protection Agency (EPA) the authority to regulate greenhouse gases as air pollution. But, while the Court found the Act to "confer the flexibility necessary"to respond to "changing circumstances,"the Justices expressed skepticism that legislators in 1970 would have been familiar with the climate-altering effects of CO2 and other heat-trapping gases. At the time of the Clean Air Act's passage, the Court wrote, "the study of climate change was in its infancy."That statement was misleading. By the late 1960s, scientists knew that greenhouse gases, derived from fossil fuel combustion, could alter the global climate with potentially serious and deleterious ensuing effects. They also recognized that addressing the problem could have broad economic implications, including on energy production and the automobile industry. These insights led to a wide-ranging conversation between leading scientists, high-level administrators at federal agencies, members of Congress, White House staff under Presidents Lyndon Johnson and Richard Nixon, the Council on Environmental Quality, and the President's Science Advisory Committee. It specifically included architects of the Clean Air Act, including Maine Senator Edmund Muskie, Tennessee Senator Howard Baker, Jr., and West Virginia Senator Jennings Randolph. Existing literature understates the breadth and depth of relevant discussions, as well as the specific connection between 1950s and 1960s-era climate science and air pollution research and regulation. This Article reviews this history and its role in the passage of the Clean Air Act of 1970. We demonstrate (1) that scientists had by 1970 established the concern that greenhouse gases emitted into the atmosphere as a waste product of burning fossil fuel - in other words, as a pollutant - could alter the global climate with potentially destructive effects; (2) that this concern was extensively communicated to both the executive and legislative branches of the U.S. federal government. This history has important implications for the scope of EPA's authority under the Clean Air Act in light of the Court's articulation of the major questions doctrine in West Virginia v. EPA. By requiring a threshold determination of clear congressional authorization for administrative actions of "vast economic and political significance,"the new major questions doctrine begets a novel type of legal-historical methodology that is distinct from both that of the era of strong purposivism and its textualist successor. We advance a template for the kind of historical analysis that may need to become standard in a post-West Virginia world.

Duke Scholars

Author Hannah Conway History