By Jessica McKenzie, August 15, 2024
Illustration by Erik English; original images from Svante Arrhenius (1896); Guy Callendar (1938); Fred Schilling, Public Domain, Collection of the Supreme Court of the United States; Grkic Creative via Adobe.
By Jessica McKenzie | August 15, 2024
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.
This interview has been condensed and edited for clarity.
Jessica McKenzie: What first prompted this research?
Naomi Oreskes: We’ve been working on this for a long time, since Mass. versus EPA. What originally triggered my interest was that comment by Justice Stevens, where he said climate change was in its infancy at the time of the 1970 Clean Air Act. I just remember thinking, holy cow.
I don’t blame the justices, because obviously, they’re not scientists. They can’t be expected to know the level of detail that I know about science. They have to deal with everything. But still, isn’t that what their clerks are for? Even some relatively rudimentary investigations into the history of science-Spencer Weart’s book, for example, The Discovery of Global Warming, has been around for decades now-would have corrected that misapprehension. It was kind of similar to that infamous comment by Justice Scalia, ‘troposphere-stratosphere. That’s why I hate science cases.’ [Oreskes was paraphrasing; the exact quote was: “Troposphere, whatever. I told you before I’m not a scientist. [Laughter] That’s why I don’t want to have to deal with global warming, to tell you the truth.”]
It was a window into how little these justices and their clerks know about this history.
Around the same time, I can’t remember the exact details now, Jody Freeman [an environmental law professor at Harvard University who also served as a Counselor for Energy and Climate Change in the Obama White House] called me and basically asked the same question: “Well, what did scientists know about this question in 1970?” I thought, if Jody doesn’t know-and she’s one of the top environmental lawyers and law professors in the country-and the justices don’t know, maybe there’s something in this.
I hired Colleen [Lanier-Christensen] to help me, thinking this would be just a little project to make the case that in fact, scientists in 1970 did know. Dave Keeling [of the Keeling Curve, the graph that shows rising atmospheric carbon dioxide levels] had already been measuring CO2 for 12 years at that point. He and Roger Revelle [who led the Scripps Institution of Oceanography at La Jolla from 1951 to 1964], Burt Bolin [the first chair of the Intergovernmental Panel on Climate Change], Gordon McDonald [another early climate researcher and member of the first presidential Council on Environmental Quality]-key leading players-had already said yes, this is a real thing that we have to worry about. So I thought, we’ll just write a short paper about what scientists knew.
When we started digging-Colleen is an amazing researcher, she’s really dogged-suddenly this universe exploded in front of us: congressional hearings and executive branch reports, Alvin Weinberg in the national laboratory system-it was a giant story. We realized this is bigger than we thought, let’s raise a little money. So, we raised a little money, we brought Hannah Conway [an environmental historian at Duke] on board. And then West Virginia happened and we’re like, okay, Ashton [Macfarlane, a Harvard researcher] should be involved with this. The whole thing just grew to be way bigger than I ever anticipated.
The story we have now is quite compelling. There was this universe of discussion-it wasn’t just a narrow scientific discussion among a handful of experts. It was an extensive discussion that included many of the most important members of Congress at that time, including Ed Muskie, who was the principal sponsor of the Clean Air Act. It included Alvin Weinberg, the head of the Oak Ridge National Laboratory. It included the science advisor to President Nixon, Lee DuBridge. Really top-level people were discussing this, both among themselves and in congressional hearings, and, in the case of DuBridge, on television.
McKenzie: Obviously, I know how the Supreme Court changed between those two decisions [Massachusetts and West Virginia]. Has the court doubled down on this claim that climate change research was in its infancy, or was that not a part of the West Virginia decision?
Oreskes: I think what happened in West Virginia is even worse, because they’re making assertions about what Congress did or didn’t intend. The question of congressional intent, of course, is an important, legitimate one, but they’re making assertions without the facts. And in fact, what we can show is that Congress was well aware of carbon dioxide, and they understood it as a pollutant. One of the interesting things we discovered was a discussion about what kind of pollutant it was.
We don’t want to overstate our case; we think it’s strong enough that it doesn’t need to be overstated. But there’s a very interesting discussion about what kind of pollutant CO2 is. Many people said, it is a pollutant, but it’s a different kind of pollutant. It’s not the same as SOx [sulfur dioxide] and NOx [nitrogen oxides], which could kill people, and were killing people in Los Angeles and London, and were understood as acute health threats. They were the main focus of the Clean Air Act.
But they recognized that there were these other pollutants that represented a more long-term threat. What’s very clear from the Congressional discussions and hearings is that they write the Clean Air Act in a capacious way in order to account for the fact that in the next few years, we will understand more about these other pollutants, and they clearly want the EPA administrator to be able to regulate these additional pollutants as well.
One interesting discussion we had among ourselves-we kept coming across things where scientists or regulators said things like, “in due course.” What did they mean by “due course”? That was hard to pin down. But we did find places where it became pretty clear that people who were having this conversation thought, probably within the decade. They did not think that 60 years later, we would still be fighting about this.
Because the court opened up this whole space to argue about congressional intent, we think that our evidence about congressional intent is actually more important after West Virginia than it was before. Before you might have argued, well, it was just sort of interesting to know. But now it potentially takes on a significant legal dimension.
Another important piece about West Virginia is this court’s use of the so-called major questions doctrine, where the court asserts, again, without really any textual basis, that agencies can’t make major decisions without explicit congressional direction, for issues that have vast economic consequences. Whether that’s right or wrong from a legal perspective, we have evidence that shows that people did recognize, even in 1969, that regulating carbon dioxide would have vast economic consequences. One of them was Glenn Seaborg, the head of the Atomic Energy Commission, the man who discovered plutonium. He said this would have huge ramifications for the automobile industry. And in fact, we see places where representatives of the automobile industry are involved in these conversations, because they recognize that it potentially has vast economic consequences.
McKenzie: During the research process, were there any giant surprises? I imagine that some of this material you were already familiar with from your research for Merchants of Doubt and your other work. But what were the most shocking things to come up while working on this paper?
Oreskes: I think there were a few surprises. The early recognition of the vast economic significance of carbon dioxide pollution, for example-I don’t know if they use the phrase “vast economic,” but large economic, major economic. That was a surprise to us. We didn’t necessarily expect that people would be already thinking through the economic consequences as early as 1969. So that was one big surprise.
I’d say the biggest surprise was the scale of the conversation. I already knew that there were specialists, scientists like Dave Keeling and Roger Revelle, who had been involved and interested in this issue going back to the 1950s. But the more we dug, the more we found, and the scale of what was involved, and also the prestige of some of the people was a surprise. I don’t know if you know who Christian Junge is, but there is a layer in the atmosphere that is known as the Junge Layer. And among meteorologists and atmospheric physicists, Junge is a big name-like Watt in the history of steam engines. Christian Junge in the 1950s was working on this question for the Air Force Geophysical Research Laboratory. It showed that this wasn’t some weird backwater of science, this was mainstream. And then of course, the fact that the Air Force is involved, there’s this very strong link into the US government that the Air Force is aware of this, knows about it, is potentially concerned about it. I thought that was important and interesting.
I would say the other thing is both the depth and the breadth of the conversation. So Sports Illustrated–
McKenzie: I was going to bring that up! And then that sort of back and forth with the television viewer and Allen Ginsberg, I feel like we get like a glimmer of the future and how this became a contested space.
Oreskes: Allen Ginsberg and the whole exchange between that constituent and Scoop Jackson-Scoop Jackson was a super powerful senator, right? I mean, as a child growing up, we didn’t really like him because he was considered very hawkish; he supported the war in Vietnam. People used to call him the senator from Boeing. So not someone who was well loved by liberals or environmentalists. And there is this very human moment where you see he gets a letter from an irate constituent. He doesn’t know what the answer is. So he writes to Lee DuBridge, asking, “Well, Lee, is there anything to this?” and it’s very beautiful in a way. Then Lee DuBridge writes back this multi-page letter explaining in great detail. I thought that was just such a beautiful human moment of a powerful person actually trying to learn, right? How great is that?
McKenzie: The open mindedness before accepted dogma, or accepted lines of inquiry and belief set it.
Oreskes: Exactly. And it leaves us with a deep feeling of missed opportunity here, and how we (as a country) have gone backward. That breadth and the depth of the conversation, the way it is seeping into popular culture; it is written up in Sports Illustrated, Fortune, The Weekly Reader. Allen Ginsburg; it’s on the Merv Griffin Show… we thought about writing a third paper, specifically about the popular culture piece. And then the whole project got so big, we never got to do the popular culture article (although we still might do it). I do think that’s a really interesting and very surprising part of the story. I don’t think any of us had any idea that someone like Allen Ginsberg would have known about this and been talking about it on television.
McKenzie: Once you read all that, you really start wondering “how did we forget?” Both, how did we forget, and then also, how do we get stuck having the same conversation or even regress? Going from this pretty calm, confident certainty that this is a thing, that it might be really, really bad, to debating whether it’s a thing at all, and whether humans are involved? While reading I was just getting so angry and frustrated. It’s just like, what happened? How did we mess this up so bad, when we knew?
Oreskes: There’s a pattern in my work where people say, “Well, I read your book, it made me so angry.” I’m like, good, it should make you angry. We should be angry about all this. So I agree 100 percent with the way you just characterized it, how one might think about this material.
In some of my other work, and in my teaching, I teach agnotology, the study of the social construction of ignorance. This paper is not framed that way, because it’s a paper for a law review. And we’re trying to make a very specific point about the law, and about a specific law, the Clean Air Act, and what Congress knew and intended when it wrote that act. So this wasn’t the place to get into a theoretical discussion about knowledge in society. But there obviously is a larger argument here. In academic life, but also journalism, we focus so much on knowledge and how we know things. And education is about learning and teaching. But we don’t pay nearly enough attention, in my opinion, to the flip side of that, to the forces that work against knowledge and understanding. And those forces are very complex. Sometimes they’re deliberate. Sometimes they’re accidental. Sometimes they’re just a victim of circumstances.
We think there is a very complicated story about what happened next. I think one element that’s totally legitimate is the greater focus on the acute urban air pollution, the smog. It was totally reasonable that people in 1970 were more focused on an immediate threat that was damaging people’s health.
I forget, there were two important staffers, Tom Jorling, and Leon Billings, and I forget which one of them said it, but he once told us, “Yeah, we weren’t even thinking about CO2.” And I thought, how’s that possible? We’ve got a gazillion documents that showed that actually, they (and then we have to parse who “they” is) were thinking about CO2.
The documents show that key staff members to Ed Muskie were primarily focused on the acute threat. And that makes total sense. So you can understand then how that becomes the focus of EPA, the national ambient air quality standards, and CO2 recedes into the background.
There’s a pattern in my work where people say, ‘Well, I read your book, it made me so angry.’ I’m like, good, it should make you angry. We should be angry about all this.
McKenzie: You can’t do everything, so you’ve got to prioritize.
Oreskes: Right. There’s only so many hours in the day, so much political capital. It wasn’t wrong to prioritize on the short-term threat. And meanwhile, science plays some role in this as well, because the scientists by and large say, “Well, that’s okay. There’s a lot about this problem that we don’t really understand. So we don’t mind having a bit more time to figure this out.”
So when the first Bush administration comes to power, he [George H.W. Bush] funds the Global Climate Research Program very abundantly. From other work that I’ve done, and also the work of other researchers, one of the things we know is there was a big fight in the Bush administration about what they were going to do about climate change. Bush had run for office claiming to be an environmentalist, and promising to address the “greenhouse effect” with the “White House effect.” But there were powerful forces in the party, and in the White House, working against that.
What H.W. does is to fund a very abundant research program. And, again, I’m not really blaming the people, one can understand it, but to some extent, I think it’s fair to say that the scientific community was bought, because what the Bush administration does is say, “Well, there are still a lot of scientific uncertainties, right?” And scientists say, “Well, yeah, there are.” And so [Bush says] “How would you like nearly 2 billion dollars for a giant program to really make climate science, the thing.” And scientists say, “Yeah, that sounds like a good idea.”
But of course, that then becomes one of the key themes that the industry, starting from the ’90s, picks up on-to claim that it’s all so uncertain that it’s too soon to do anything about it. So what starts out as reasonable prioritization, and a reasonable desire to nail the problem down more clearly, gets shifted largely through the influence of the fossil fuel industry and its allies into, “Oh, there’s way too much uncertainty. We can’t do anything about this. We need more research.”
So there are parts of the story that we can understand, they make sense. And then there are parts of the story that are ugly, where the fossil fuel industry, knowing all of this, having all of this information and knowing as much or more than the academics, scientists, work to undermine the public and government understanding of climate science. In another paper I wrote with Geoffery Supran and Stefan Rahmstorf, we showed that Exxon’s modeling in the 1970s and ’80s was as good or better than anything academics were doing at the time. But in the late 1980s and early ’90s, they made the decision to go down the path of denial. That’s where the story turns ugly. And that’s what connects this new work back to my earlier work on the history of climate change denial. It doesn’t start out as a story of denial. It starts out-
McKenzie: -as open inquiry.
Oreskes: Exactly. As you say, it starts as open inquiry, and legitimate prioritization. In 1965, LBJ makes this big, special message to Congress, where he mentions carbon dioxide, but I’ve always thought one could kind of forgive LBJ in 1965 for not doing more about the climate issue. He’s got some other problems to worry about, and they’re a lot more immediate. So it’s a story that begins with legitimate inquiry, legitimate scientific investigation, and then legitimate political prioritization. But then it devolves into something quite ugly.
“The Unchained Goddess,” a film that voiced concern about human caused climate change in 1958. “Tourists in glass bottom boats would be viewing the drowned towers of Miami through 150 feet of tropical water.” The quoted passage begins at 50:12.
McKenzie: The other thing I noticed, as an editor at the Bulletin, is how often carbon dioxide was discussed alongside radioactive pollution. These questions of atmospheric pollution, and climate and weather, they were all sort of tied in with nuclear history and grappling with what had happened during World War Two.
Oreskes: As historians, we pick out one thread to follow in a very complex tapestry of life, politics, science, and history. Spencer Weart wrote about this years ago in his book, Nuclear Fear, where he talks about exactly what you said, how the problem of atmospheric fallout develops in the ’50s, around the same time that people are also becoming more acutely aware of acute air pollution from industrial sources. And particularly, you think about the London smog, in the late ’50s, where people die from polluted air.
At the same time, you have people dying from radioactive fallout, like in the Lucky Dragon incident in the Pacific. So you have these deadly things falling out of the sky-I mean, urban air pollution isn’t exactly falling, but metaphorically it is. So they are linked in people’s minds. And you see some of the speeches we quote, some of the people mention background radiation as one of these more chronic, rather than acute forms of pollution. CO2 seems to be similar to radiation: you can’t see it, you can’t smell it, you can’t touch it. But it’s there, it can hurt you. But radiation is scarier, because it can hurt you faster. Much faster.
And of course, Rachel Carson in Silent Spring talks about radioactive fallout-it’s a forgotten piece of that story-but she was very concerned about the various forms of pollution, both in the atmosphere and in the oceans. Many people have forgotten that her book before Silent Spring was The Sea Around Us. In that book, she’s quite concerned about pollution that could be damaging marine life.
McKenzie: The other thing that really struck me is how early we were thinking about equity, fairness, justice. When I read, “How long will it be until the carbon dioxide from North American Europe begins to affect the climate in Asia and Africa?” I was, like, “We were already talking about that?”
Oreskes: There are people who have tried to claim that if Congress did talk about climate change that they meant, the climate of California or the climate of New York, and that one sentence-as well as many others-refutes that claim. They understand they’re talking about global climate change; something that we do in Michigan, can affect people in Bangladesh. And they knew that in the 1960s.
McKenzie: And there was at least one quote about why this particularly cannot be a state’s issue, because there are not invisible barriers between states that keep the pollution contained.
Oreskes: We came across all kinds of reports of international meetings in which they’re saying exactly that, that somehow we have to figure out a way to deal with this together. Because it’s true of all air pollution, and it’s already understood in the ’60s. This is why there’s a call for the national ambient air quality standards, because pollution in Michigan doesn’t stay in Michigan.
McKenzie: I just reported a big piece about geoengineering and was struck by the parallels to the debate over whether we should spray aerosols in the atmosphere [to cool the planet]. And the other thing I found while reporting that story is that even though I was desperately looking for new things to say, there had been kind of similar knowledge and debate for so long, I was really grasping at straws. I felt like scientific advances had been incremental, but the broader framework of the debate hadn’t changed much, other than that climate change had gotten much worse, and that desperation is changing people’s openness to geoengineering.
They understand they’re talking about global climate change; something that we do in Michigan, can affect people in Bangladesh. And they knew that in the 1960s.
Oreskes: I know a lot about this, and I know a lot of the people involved, and I feel that a lot of people involved are very cavalier about the governance issues. Like “Well, we’ll get that sorted.” Well, you haven’t got it sorted for ocean mining. We never got it sorted for climate change. We kind of did it for acid rain, but in a not-100-percent-effective way. So why do you think that suddenly, we’re going to all sit at a table, sing Kumbaya and have world peace?
McKenzie: The Supreme Court has continued to hand down some bad climate and environment decisions. I’m thinking most recently of the overturning of the Chevron Doctrine. How does this research have bearing on more recent or current cases working their way through the court?
Oreskes: We’re not naïve; we don’t think that John Roberts is going to read this paper and completely change his views about these matters.
McKenzie: Wouldn’t it be nice though?
Oreskes: It would be nice. But my hope is two things: That maybe his clerks will read these papers. One of the things we know that’s good about Roberts, and some of the other justices as well, is that he makes an effort to get the best clerks; he doesn’t have a political litmus test for his clerks. And that’s a good thing. Even if his clerks are conservative, we have to hope that they will read this paper, and that there will be some arguments that they will have to at least take into consideration, and that it could help to moderate some of the more extreme and inappropriate things that that the Court has said.
Our other audience is lawyers. We think this paper will help strengthen the arguments and the resolve of lawyers who may want to fight back.
McKenzie: As you said, the Supreme Court does everything; they can’t specialize in this. They have to have this information presented to them either by their colleagues or clerks or the people arguing cases.
Oreskes: Exactly. And the one good thing we see, particularly in the West Virginia decision, if the court feels strongly that we need to have a better understanding of what Congress was thinking at the time that the statutes were written, that’s a historical question. That actually opens a space for historians to make useful contributions to these debates, because we are the people who have the toolkit, the skill set, to find the documents and to answer these historical questions. That assumes of course that the court meant what they said, and it wasn’t just an excuse. To the extent that they do believe that the historical argument is valid-then it means that they should at least be willing to consider these historical arguments.
McKenzie: I know this is in a legal journal, but I imagine I’m not the only person in the mainstream press writing about it. What impact can this have on the broader public? What is the significance of changing people’s understanding of climate change as new or only recently decided, as opposed to something with this really long, really deep history?
Oreskes: I think two things: One is what you just said yourself, that a lot of people have the impression that this is something relatively recent, that we’ve only just recently been trying to sort out. And I think it does shift how you feel about its importance, its significance, and the sense that we are so overdue to act on this. It makes you feel more strongly that we’ve already waited a really long time. There’s no excuse to wait any longer.
A second thing that relates to the first is it invites again, the question that you just asked: If we knew all this stuff back in 1969, why are we now even arguing if this is even a thing? That invites a kind of curiosity about malfeasance, about what the fossil fuel industry and its allies have done.
And it’s not just about climate change. That’s the really sad thing about this whole story. I mean, I’ve been doing some work recently about other related things. These patterns of industry denial of science are sadly not restricted to the fossil fuel industry. And we have to understand them, in order to understand why we live in a sea of chemicals that we know are toxic, and yet they don’t get regulated; why we’re still dealing with the legacies of industrial accidents, oil spills. Maybe you’ve been following the lawsuits about talc and ovarian cancer? That’s another area where there’s good evidence that the science got muddled by industry disinformation. Then there’s the whole history of tobacco, which is ongoing today, as the tobacco industry continues to market its products to young people in Asia and elsewhere in the world. These are big patterns that really hurt people.
In order to try to fix the problem, we have to understand what it is, we have to understand where it came from, and how long it’s been going on.
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Make your gift now Keywords: Clean Air Act, EPA, air pollution, carbon dioxide emissions, carbon dioxide regulation, climate change facts, climate science, science historyThe Bulletin elevates expert voices above the noise. But as an independent, nonprofit media organization, our operations depend on the support of readers like you. Help us continue to deliver quality journalism that holds leaders accountable. Your support of our work at any level is important. In return, we promise our coverage will be understandable, influential, vigilant, solution-oriented, and fair-minded. Together we can make a difference.
