Not That SCOTUS Will Care, But The Clean Air Act Covered CO2 As A Pollutant In 1970, Research Shows

Among the many obstacles to enacting federal limits on climate pollution, none has been more daunting than the Supreme Court. That is where the Obama administration’s efforts to regulate power plant emissions met their demise and where the Biden administration’s attempts will no doubt land. A forthcoming study seeks to inform how courts consider challenges to these regulations by establishing once and for all that the lawmakers who shaped the Clean Air Act in 1970 knew scientists considered carbon dioxide an air pollutant, and that these elected officials were intent on limiting its emissions.

The research, expected to be published next week in the journal Ecology Law Quarterly, delves deep into congressional archives to uncover what it calls a “wide-ranging and largely forgotten conversation between leading scientists, high-level administrators at federal agencies, members of Congress” and senior staff under Presidents Lyndon Johnson and Richard Nixon. That conversation detailed what had become the widely accepted science showing that carbon dioxide pollution from fossil fuels was accumulating in the atmosphere and would eventually warm the global climate.

The findings could have important implications in light of a legal doctrine the Supreme Court established when it struck down the Obama administration’s power plant rules, said Naomi Oreskes, a history of science professor at Harvard University and the study’s lead author. That so-called “major questions” doctrine asserted that when courts hear challenges to regulations with broad economic and political implications, they ought to consider lawmakers’ original intent and the broader context in which legislation was passed. “The Supreme Court has implied that there’s no way that the Clean Air Act could really have been intended to apply to carbon dioxide because Congress just didn’t really know about this issue at that time,” Oreskes said. “We think that our evidence shows that that is false.”

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In a landmark 2007 decision, the Supreme Court held that the Clean Air Act authorizes the Environmental Protection Agency to regulate carbon dioxide as a pollutant. However, even that ruling claimed that climate science was in its “infancy” when Congress enacted the key provisions in 1970. The ruling, known as Massachusetts v. EPA, quickly became a target for some political conservatives. Project 2025, a conservative playbook for a next Republican administration, calls for undoing the EPA “endangerment” findings the ruling enabled, though Donald Trump has sought to distance himself from Project 2025 as he campaigns for reelection. The Trump administration reportedly considered such a move in its final days but opted against it. Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University, said the new study could be “of critical importance” if the Supreme Court were to hear a challenge to Massachusetts v. EPA.

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https://insideclimatenews.org/news/02082024/clean-air-act-carbon-dioxide-climate-pollutant-study/