The past two years has seen the Supreme Court of the United States fundamentally reshaped the government's ability to regulate greenhouse gas emissions. I'm primarily talking about rulings in three cases West Virginia versus EPA in twenty twenty two, and then two cases called Loperbright and Corner Post in twenty twenty four. Loperbright got a lot of attention because it is the case that got rid of what's called Chevron deference. Chevron deference was a president that was in place for
a number of decades. It basically said that when legislation or a particular statute has not been explicit about exactly how a law should be implemented by an agency, it's up to that agency to decide how to implement the law. The idea of being that laws are often quite vague, it's up to regulatory agencies to implement those laws based on what they're exports are telling them. That is gone now, which means prepare to see a lot of lawsuits about regulations,
particularly environmental regulations. The Corner Post ruling came out during the same Supreme Court session and got almost no coverage, but is equally problematic when it comes to environmental and climate policy. That case got rid of the statute of limitations on legal challenges to previously passed legislation. So if you think about the most recent ten years or so, you know, an administration comes in, they pass a new power plant rule, it gets challenged, that makes its way
through the court. We have not seen, for example, a challenge to a rule that came about in the Clinton administration because there was a statute of limitations on that sort of litigation. Now that's gone. So just think about what that might mean if the Koch brothers, for example, continue to fire up their litigation machine and start filing suits challenging all of the past twenty years worth of environmental regulations. That is what we are in for in
the years ahead now. Before West Virginia came along and said that because the Cleaner Act didn't explicitly lay out climate policy, the EPA cannot use it to regulate greenhouse gas emissions. Another case, Massachusetts versus EPA, ruled that in nineteen seventy when the Clean Air Act was passed, climate science was quote in its infancy, and they inferred from that that Congress could not possibly have meant for that Act to be used to regulate anything related to climate change.
In a new study in Ecology Quarterly, Naomia Rescuez and a handful of other researchers with her at Harvard University decided to look into whether that is even true this idea that climate science was in its infancy in nineteen seventy. What they found was that climate science really was not
in its infancy in nineteen seventy. Then, in fact, there was not only quite a bit of scientific knowledge about climate change, both at the oil companies themselves as we know, and also in the government, but that even in a lot of popular culture, climate change as a thing that was happening and that was understood to be caused by
fossil fuel combustion, was pretty commonly known. They found all of these really incredible examples of late night talk shows talking about it, beat poets talking about it, movies, TV shows, all kinds of spots where it seemed unlikely that people would be talking about this issue if it was not more widely known. That research calls into question a lot of the assumptions that some of these recent rulings have been based on, which makes things a little more interesting.
I talked to Aresquez about her research, what was new and surprising to her, how this history shapes how we understand the whole history of climate science in general. And I also called up Patrick Parento at Vermont Law School to ask about how this new research might play into the cases we're expecting to see in the next couple of years. That's all coming up after this quick break. I'm Amy Westervelt and this is drilled. I wanted to just ask you first, what prompted you to start looking
into this. Did you start doing the research after West Virginia versus EPA or was there another.
Well, this paper has been super long in coming, and it's actually taken a long time, partly because it turned out to be a much much bigger project than we expected. That party is, we all had other day jobs, so this is like being actually as a second project or
a third project. So the short answer is, actually, I've been interested in this question really ever since Mass versus EPA, when Big in court said that in nineteen seventy climate science was in its infancy and implied therefore that there was no way Congress could have really understood the problem enough for them to intend for the cleaner app to apply to CO two rehouse gases. Yes, well, I say science,
who was working on the history of cloud science. That statement that client science was in its infancy.
I knew it was wrong.
I just knew that was false, because already by that time I had been working probably about five years already on the history of climate science.
And I knew that already in the nineteen fifties.
You know, in the fifties we see the beginning of what becomes a sustained you know, half a century of important scientific work on CO two, the greenhouse effair and its potential implications. But what I didn't know was how much had that been communicated to government. And you might recall Emergency of Doubt. We cite the nineteen sixty five Peace Sack Report on Environment that has a whole appendix
about climate change. And we know by the time we wrote Merchants of Doubt, which was in twenty ten, we knew that at least President Johnson was aware of it. We know that that report landed on his desk, and we know that he mentions CO two and climate in his Special Message to Congress that year. So I knew that there was a pretty significant scientific conversation already taking
place by nineteen sixty five. I knew that Dave Keeling by sixty five had already concluded that he had enough data to say, Yeah, this is going to be a big deal. And we knew that it had reached the executive branch through Peasact. But what we didn't know at that time was how broad was the conversation and did Congress know about this, because obviously we have separation of powers in the US government, so it's plausible that, you know, the executive branch might know stuff that they did not
communicate clearly to the legislative branch. So that was something that I had been interested in for a long time. And then at some point I can't remember exactly when this was, but it was shortly after I moved to Harvard's. This would have been twenty thirteen, fourteen fifteen, something like that. Jody Freeman called me kind of asking the same question, you know, what did we know about what was known
about this issue when the Cleaner Act was written. Because the preambleton Cleaner Act includes the words whether in climate so ut any straightforward, non tortured reading of the statue, it obviously relates to weather and climate, because the words are in the statue and were that you talks about impacts.
Impacts on weather and climate are one of the things they say. It seems pretty obvious.
But the other side had argued in a couple of amikas briefs, oh, well, when they used the word climate, they didn't really mean it the way we mean it today to mean global climate change. They were just talking about the climate of California or the climate of North Carolina. They were thinking about local effects and climate. Well, so
we thought, well we could answer that question. And it is true that sometimes words can be used in different ways, and it is true the word climate can refer to local or global climate.
So I hired.
Colleen, my GRADUA student coming in the near Christiansen, who's the second althar on the paper, to just do a little bit of digging, and very quickly the project grew and we discovered this really astonishingly broad and deep conversation among scientists and among Congress and members of Congress about this issue about global climate change related to greenhouse gases
in the atmosphere. And so we started working on this, raised a little money pay for calling to be a research assisted and as it grew, when we found more relevant things than we recruited in Hanna Conway to join the project. And then West Virginia happened, and this so
called Major Questions doctrine. And one of the things that the court said in that case, as you know, was to introduce the standard of the vast economic and political significance, and generally that if something is a vast economic and political significance, that it raises the bar for agency regulation, and that therefore the statute has to be absolutely explicit
before an agency could make choices. Now, we could argue about the justificational wisdom of that claim, but I'm not a legal experts so.
I wouldn't want to get into that.
But what we did know when that decision came out was that we actually had people in the nineteen sixties talking about the potentially vast economic and political significance of doing something about C two, And we even had conferences where people from Ford Motor Company had been at the conference discussing these issues. There was a report on electric cars by the Department of Transportation that specifically talks about how CO two might force us to convert the entire
automobile fleet to electric. Well that kind of lit a fire on us and said, Okay, we've a work on this project for years, kind of back burner. We need to put this on the front burner and we need to get this written. And so that's the story about the paper and why it's now coming out. So it absolutely is relevant to West Virginia, but it was not motivated originally about West Virginia.
That's so interesting.
I know you're not a legal scholar, and I'm going to try not to ask you legal strategy question.
But I have curious if you've heard from folks.
In the legal realm about how having this information might help with the next I mean, like, I know, the EPA's most recent power plant guidelines have already been challenged, and I imagine that they're going to fall into this thicket of major questions doctor and now post Shavon Dufferin's staff too.
Yeah, well, I'm sort of careful about that.
I don't spend a lot of time talking to lawyers who are actively engaged in these kinds of cases in advance of me doing my research, because I really want us to look at the evidence as objective as possible and let the tips fall, and then it's up to lawyers and judges to decide the consequences and implications.
So I mean, this isn't part of a legal strategy.
And although I'm sure that some of our opponents will probably claim that it's not part of a legal strategy, wasn't written to support any kind of particular legal approach, or much less any particular case. But obviously we think it has implications. We wouldn't have done the work if we didn't think it mattered. And so let me read you something that actually Ashton wrote in response to a
query from a different journalist about this. So asked MacFarlane with jdphd student who's just finished his jd at Harvard Law School and now is working with me doing a PhD. And we recruited to partici making this party because we felt like we did want a little bit more legal insights. And he's studied with Jodi Freeman and Richard Lazarus and all the big name environmental law professors at Harvard. So
here's why he wrote the major questions. Doctrine requires a clear statement from Congress to authorize regulatory action of vast economic and political significance. The doctrine reflects an assumption that Congress would be exceptionally clear when granting an agency highly significant regulatory power. How do we determine what counts as a quote major question and a quote clear statement. The Supreme Court has implied that the inquiry depends on both
context and history. Yet the Court missed large swats of relevant history about climate change, which we present in this article. This history is important not only to the wholesale question of whether the Cleaner Act covers greenhouse gases, which we think it clearly does and our paper then supports that, but also to the retail question of whether any new
climate regulation is sufficiently well authorized. And then he goes on to say, the Court has not said, perc actually how history informs the major question analysis, nor what types of historical material matter most. Our key point is there's a whole lot of history that the Court overlooked, and it should not overlook that history in future climate cases.
And I guess what I would add to that is that so much of what the Court claimed was about this issue of the clear statement, and they've repeatedly implied both in Mass versus EPA and in West Virginia, you know, sort of continue to imply this idea that there's no way that Congress could really have intended this to apply to Co. Two A because they didn't really know and
be because they hadn't anticipated the vast economic significance. And we think this paper shows that both of those implications are wrong.
I called up Patrick Parento at Vermont Law School to ask about how this new research might come into play in some of the cases we expect to see in the months and years ahead.
The bottom line is, what we're now talking about is the margin. We know we're going to lose almost all of the cases that make.
It to the Supreme Court docket.
It's now a question of can you in some cases work the margins?
And that means either Roberts or Barrett, maybe.
Even sometimes Kavanaugh, almost never Gorsich or Alito or Thomas. If you're alert as an advocate, as a lawyer arguing these cases.
There's got to be a way to.
Cobble together votes if you can convince them that the text of the statue ought to be interpreted in a certain way that they call the best reading.
That's where we've come to. What's the best reading?
Of the text of the statue, since we're all textualists now, as Justice Kagan has famously said, and so you know, the best reading does to some extent turn on what was on Congress's mind. Intend what can we infer from the type of words and language they used was their intent?
And we know that both of the cases both are the rules I.
Should say that are now in litigation, the car rules, the tail.
Piper rules, and the power plant rules.
We know the odds are one or both of them are going to wind up on the.
Supreme Court docket.
But the point is the combination of all these decisions West Virginia lowerl Bright Open Ruling, Chevron Corner Post knocking out the six year statute of limitations, meaning pretty of the rules on the books is fair game. We haven't begun to see the avalanche of lawsuits that we're going to see with specific legal foundation and Koch Brothers' money. Man, oh man, So you have to look at that whole suite that we've seen, and of course we've got more coming.
When you look at that, the agency lawyers and.
The staff technical staff, you.
Know they've got to be thinking, man, can we get five votes? Can we get five votes, you know, and do you just do a headcount and you figure out who can we get to support this interpretation. But you know, they're zeroing in on already what was It's sometimes called antecedent interpretations of a statute.
In this case, we're talking Clean Air Act.
So for the car rules and the power plant rules, they're going back to the nineteen seventy Act, increasing forward and the history and how they've been interpreted before, so that the newest, the interpretation.
Of today is not new. So now we'll find out.
Now we will.
Really find out if APA's attempts to testify these two rules. We'll find out whether it's possible for EPA to get the five votes they need to uphold these two rules, or whether Morrissey and Company West Virginia Company are right that no matter what EPA tries to do to address climates, they're going to lose because everything they do is a major question. They don't get any difference. The best breaking of the statue is not what EPA says it is.
Et cetera.
So in that sense, this really robust, sophisticated analysis of the history of the Clean Air Act, it's got to make a difference.
Okay, there are a number of things in here that are really interesting and that had not been published before and that people did not know about in terms of this history. I imagine there were things that were surprising you too. What were some of the most surprising discoveries in terms of when people were talking about what, Well, there were.
A bunch of things.
The biggest surprise actually was was, you know, Sports Illustrated and the Weekly Reader, and just to see the way that this had permeated into popular culture and popular conversation very very early on, and I think we all fell in love with the Alan Ginsburg piece. Here's this beat poet, right, he's a poet, not a scientist. He's on the MERV Griffith Show, which is one of the most popular talk shows on television in those days. I mean MERV Griffith
was the opera of the nineteen sixties. And he's talking about climate change. He's talking about the ice caps melting, and he's linking it to cars. He says, pollution from automobiles can melt the ice cap and you know, flood the coastal cities of the world. I mean, that is one hundred percent global climate change. As we understand it today, and Alan Ginsburg has got it in a nutshell in the nineteen sixties, he's talking about it on Primetime. And then the other piece I really loved was so then
and Ashton found this. So then this angry constituent in Washington State rites to his senator, Henry Jackson. And Henry Jackson was one of the most famous powerful senators of that time, someone whose name was well known to me that I remember from my own childhood. I mean, I remember we didn't like Scoop Jackson because he was very pro Vietnam War. So this is a very famous name. I mean, this whole project, all these names that I already knew kept popping up. These were not minor people.
So Scoop Jackson's one of the most powerful people in the US Congress at the time. The constituentent writes to him complaining, asking him to do something about it, and Jackson reads the letter and instead of just throwing it in the bin or thinking it's a hoax or whatever, or the guy's crazy, he writes a letter to the president's science advisor Lee to Bridge. This is the advisor to Richard Nixons or Republican president, and he says to to Bridge, well,
you know what about this? Is there any truth in this? And Leegia Bridge writes back a multipage letter in which he explains very carefully and patiently. He explains to Henry Jackson that yes, actually this is a real thing. And then a few months later he goes on Meet the Press again mainstream American television to talk about the issue and even says we might need to have a carbon tax. And this is in nineteen sorry I fraid of sixteen nine or seventy, but right before the passage of the
Cleaner Act. So here you have a powerful senator, the science advisor to a Republican president, just talking openly and honestly about this issue and not being dismissive, not thinking to hoax, but actually taking it seriously and trying to learn.
And I just thought that was kind of beautiful. It's so interesting. I also bought the Frank Capra movie.
Capra Will Be Speak To And you know, mister science, I know that was brilliant too. Any Frank Capra, super famous name from the history of film. Right, So again I feel like for me, the biggest surprise overall is I knew scientists were talking about this, but as you know, a lot of scientific conversations can be very in the weeds. Scientists can really live in their own science bubble, and so what I didn't know was how broadly this information
had percolated in the nineteen sixties. That I guess was the biggest surprise, And of course that reinforces our claim that Congress was aware of this. They were talking about it, they knew about it, they heard testimony about it, they were getting information from leading scientists like the President's science advisor, like the head of ENCAR, Gordon MacDonald, who's serving on
CEQ at that time. Important leading scientists are talking to important, leading members of Congress, and that's crucial then in the context of the Major Questions doctrine for understanding what Congress knew about this issue and therefore what they could have intended when they wrote this law.
In any of the stuff that you found, did you get any sense of why they steered clear of being more specific in the law?
Yeah, I wed think we do know that answer to that, and our group had a lot of discussions about this. I mean, part of this whole thing has to do with whether or not they understood CO two to be a pollutant, and therefore whether they intended these discussions about pollution to include CO two. The answer to that question is absolutely yes, and that was one of the other
big surprises. It was astonishing to us how many conferences on air pollution in the nineteen sixties discuss CO two and how many reports that are written on air pollution mentioned CO two as a pollutant. So there's absolutely no question that they understand that CO two is a pollutant. But there's two things that we think happened. The first is that there's a very clear conversation about what kind
of a pollutant is it. So while they recognize that it's definitely a pollutant, they also say, and this is it still comes up even today, that it's a different kind of pollutant. And so the way we've been thinking about it now is taking a parallel from public health to distinguish between a que and chronic threats, or cute
and chronic disease. So they recognize that CO two is a pollutant, but they say it's a different kind of pollutant than the sort of things that are leading to smog in Los Angeles or New York other urban areas, and the immediate attention of the moment is on the acute pollutants, because they are literally killing people right People are going to the emergency room in Los Angeles on bad air days, and so understandably, the primary focus of
discussion is on these acute pollutants, which then lead the EPA to create the national ambient air quality standards for things like Knox smocks, our snack margery, stuff like that. But they also understand that these other things are pollutants too, and that they need to be dealt with, but maybe
not immediately. And so we come across various reports where they say things like in the fullness of time, and so we have a long discussion in our group of about, well, what do they mean by in due course or in the fullness of time? And that's actually a really hard question to answer. But here's how I've been thinking about it.
You know, the team thinks that, like Hannah Conway, I remember asking this to her specifiction, she said, well, she thinks that they thought it meant like within the decade, that we were going to deal with these acute threats first, but then we would get to these other chronic threats, and I think that the scientific community was part of that because the scientists themselves recognized that even though they were confident that CO two, if it was left unabated,
would lead to climate change, or would almost certainly, or would probably.
You can put in whatever cameo.
You want, but there were a lot of details that in the nineteen sixties were not well understood. For example, you see questions about ocean heat uptake, you see this about the biosphere. So these were big scientific questions which scientists themselves understood needed to be addressed. So in the nineteen seventies, that's when we see the growth of climate modeling.
That's when Suki Minabi begins to build his first climate models at the Geophysical Sluid Dynamics, the work from which he finally want to know about prize couple years ago. So there's this sense in the scientific community that, oh, yeah,
that makes sense, We've got more work to do. And so I think that everyone involved in this conversation, both the scientists and the legislatures, understood that CO two was a threat, understood that it was a serious threat, understood that it would have vast economic and political consequences.
Either way, whether we regulated or.
We didn't regulate it, it would have vast consequences. But they thought, you know, we have a little time to work this out. And what they meant by a little time was a decade or maybe two. And that actually fits with the larger history that I've written about, if
you think about it. So in the nineteen seventies we begin to see the first global conferences on climate change, we see the National Academy issues a couple of reports, the famous Charny Report, and then in the eighties we get the creation of the IPCC and in nineteen ninety two the UN Framework Convention on Climate Change.
So, in fact, the sorting of.
The science and the move to regulate CO two do happened within the one to two decade framework that people anticipated. But the giant butt in the story of the giants spanner in the works is that in the late eighties, as the science starts to come together, that's when the fossil fuel industry begins to try.
To fight it.
Yeah, one thing I want to ask you about is that I don't know we've started hearing from the fossil fuel companies in the last ten years maybe a little bit less. This's the whole idea of like, well everybody knew, so you can't just hold us accountable, right. I'm sure that they will find ways to use the stuff in here to bolster the argument. So I'm curious what you think about that.
Well, that's exactly the same argument that the tobacco industry used. They are once again using the tobacco playbook. And there's two important answers to that. Yes, we did know, but then we got confused about this because of what the fossil fuel industry did. They worked actively to undermine our knowledge and understanding. And we may do a follow up paper to answer exactly that question. I mean, why was
all this underst standing lost? You know, why did so many Americans say, by the eighties and nineties and even into the two thousands, think we didn't really know that there was no scientific consensus, all that stuff.
I've worked on in the past.
Yeah, the answer to that is fossil fuel industry malfeasance. So they are responsible for the fact that we lost this knowledge that we actually used to have.
So that's the first part.
And then second part is that I'm not a legal scholar, but the law is very clear. If you produce a product that kills people, the fact that some people knew that it may kill people doesn't get you off the right. Corporations have legal responsibilities. Just because someone may or may not have known about saying doesn't absolve you from legal and moral responsibility for the consequences of your actions.
Yeah, that's it for this time. We'll be back soon with another episode. Don't forget to check out the print stories on our website at drilled dot media. Yeah, and with various co publishing partners including Rolling Stone and Vox. This episode was mixed and mastered by Peter Duff. Our theme music is Bird in the Hand by Forenown. Our artwork is by Matthew Fleming. You can also check us out on Twitter at we are drilled and everywhere else
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