WEBVTT - Denial to Delay: The Battle Over the Clean Air Act 0:00:01.600 --> 0:00:04.320 The past two years has seen the Supreme Court of 0:00:04.360 --> 0:00:09.440 the United States fundamentally reshaped the government's ability to regulate 0:00:09.480 --> 0:00:15.400 greenhouse gas emissions. I'm primarily talking about rulings in three 0:00:15.600 --> 0:00:19.880 cases West Virginia versus EPA in twenty twenty two, and 0:00:19.920 --> 0:00:25.040 then two cases called Loperbright and Corner Post in twenty 0:00:25.120 --> 0:00:29.440 twenty four. Loperbright got a lot of attention because it 0:00:29.600 --> 0:00:33.360 is the case that got rid of what's called Chevron deference. 0:00:34.240 --> 0:00:37.199 Chevron deference was a president that was in place for 0:00:37.320 --> 0:00:40.400 a number of decades. It basically said that when legislation 0:00:40.560 --> 0:00:44.440 or a particular statute has not been explicit about exactly 0:00:44.520 --> 0:00:47.920 how a law should be implemented by an agency, it's 0:00:48.040 --> 0:00:51.240 up to that agency to decide how to implement the law. 0:00:51.320 --> 0:00:54.840 The idea of being that laws are often quite vague, 0:00:55.160 --> 0:00:59.040 it's up to regulatory agencies to implement those laws based 0:00:59.120 --> 0:01:03.280 on what they're exports are telling them. That is gone now, 0:01:03.400 --> 0:01:07.280 which means prepare to see a lot of lawsuits about regulations, 0:01:07.319 --> 0:01:11.600 particularly environmental regulations. The Corner Post ruling came out during 0:01:11.640 --> 0:01:15.839 the same Supreme Court session and got almost no coverage, 0:01:15.880 --> 0:01:20.440 but is equally problematic when it comes to environmental and 0:01:20.480 --> 0:01:24.520 climate policy. That case got rid of the statute of 0:01:24.560 --> 0:01:30.720 limitations on legal challenges to previously passed legislation. So if 0:01:30.760 --> 0:01:33.320 you think about the most recent ten years or so, 0:01:33.880 --> 0:01:37.080 you know, an administration comes in, they pass a new 0:01:37.120 --> 0:01:40.440 power plant rule, it gets challenged, that makes its way 0:01:40.480 --> 0:01:44.319 through the court. We have not seen, for example, a 0:01:44.480 --> 0:01:48.040 challenge to a rule that came about in the Clinton 0:01:48.120 --> 0:01:52.280 administration because there was a statute of limitations on that 0:01:52.440 --> 0:01:56.919 sort of litigation. Now that's gone. So just think about 0:01:56.920 --> 0:02:00.200 what that might mean if the Koch brothers, for example, 0:02:00.760 --> 0:02:05.680 continue to fire up their litigation machine and start filing 0:02:05.720 --> 0:02:10.120 suits challenging all of the past twenty years worth of 0:02:10.240 --> 0:02:14.080 environmental regulations. That is what we are in for in 0:02:14.120 --> 0:02:19.120 the years ahead now. Before West Virginia came along and 0:02:19.200 --> 0:02:24.079 said that because the Cleaner Act didn't explicitly lay out 0:02:24.120 --> 0:02:28.800 climate policy, the EPA cannot use it to regulate greenhouse 0:02:28.840 --> 0:02:36.440 gas emissions. Another case, Massachusetts versus EPA, ruled that in 0:02:36.520 --> 0:02:40.200 nineteen seventy when the Clean Air Act was passed, climate 0:02:40.280 --> 0:02:44.440 science was quote in its infancy, and they inferred from 0:02:44.440 --> 0:02:48.079 that that Congress could not possibly have meant for that 0:02:48.160 --> 0:02:53.000 Act to be used to regulate anything related to climate change. 0:02:53.120 --> 0:02:57.800 In a new study in Ecology Quarterly, Naomia Rescuez and 0:02:57.840 --> 0:03:01.320 a handful of other researchers with her at Harvard University 0:03:02.400 --> 0:03:06.040 decided to look into whether that is even true this 0:03:06.200 --> 0:03:10.600 idea that climate science was in its infancy in nineteen seventy. 0:03:11.400 --> 0:03:14.840 What they found was that climate science really was not 0:03:15.400 --> 0:03:19.639 in its infancy in nineteen seventy. Then, in fact, there 0:03:19.760 --> 0:03:23.200 was not only quite a bit of scientific knowledge about 0:03:23.240 --> 0:03:26.640 climate change, both at the oil companies themselves as we know, 0:03:27.320 --> 0:03:30.800 and also in the government, but that even in a 0:03:30.840 --> 0:03:34.720 lot of popular culture, climate change as a thing that 0:03:34.880 --> 0:03:38.600 was happening and that was understood to be caused by 0:03:39.160 --> 0:03:45.120 fossil fuel combustion, was pretty commonly known. They found all 0:03:45.200 --> 0:03:48.720 of these really incredible examples of late night talk shows 0:03:48.760 --> 0:03:55.240 talking about it, beat poets talking about it, movies, TV shows, 0:03:55.480 --> 0:04:00.680 all kinds of spots where it seemed unlikely that people 0:04:00.680 --> 0:04:03.240 would be talking about this issue if it was not 0:04:04.480 --> 0:04:08.839 more widely known. That research calls into question a lot 0:04:08.880 --> 0:04:12.720 of the assumptions that some of these recent rulings have 0:04:12.800 --> 0:04:15.800 been based on, which makes things a little more interesting. 0:04:16.320 --> 0:04:20.320 I talked to Aresquez about her research, what was new 0:04:20.360 --> 0:04:24.360 and surprising to her, how this history shapes how we 0:04:24.480 --> 0:04:28.240 understand the whole history of climate science in general. And 0:04:28.360 --> 0:04:32.360 I also called up Patrick Parento at Vermont Law School 0:04:32.920 --> 0:04:37.120 to ask about how this new research might play into 0:04:37.240 --> 0:04:39.960 the cases we're expecting to see in the next couple 0:04:40.000 --> 0:04:43.120 of years. That's all coming up after this quick break. 0:04:43.600 --> 0:04:55.320 I'm Amy Westervelt and this is drilled. I wanted to 0:04:55.520 --> 0:04:58.160 just ask you first, what prompted you to start looking 0:04:58.200 --> 0:05:00.800 into this. Did you start doing the research after West 0:05:00.880 --> 0:05:03.320 Virginia versus EPA or was there another. 0:05:03.320 --> 0:05:05.400 Well, this paper has been super long in coming, and 0:05:05.440 --> 0:05:08.279 it's actually taken a long time, partly because it turned 0:05:08.320 --> 0:05:11.080 out to be a much much bigger project than we expected. 0:05:11.520 --> 0:05:14.280 That party is, we all had other day jobs, so 0:05:14.279 --> 0:05:17.240 this is like being actually as a second project or 0:05:17.279 --> 0:05:20.000 a third project. So the short answer is, actually, I've 0:05:20.040 --> 0:05:23.960 been interested in this question really ever since Mass versus EPA, 0:05:24.560 --> 0:05:28.919 when Big in court said that in nineteen seventy climate 0:05:29.000 --> 0:05:32.760 science was in its infancy and implied therefore that there 0:05:32.839 --> 0:05:35.120 was no way Congress could have really understood the problem 0:05:35.279 --> 0:05:39.240 enough for them to intend for the cleaner app to 0:05:39.360 --> 0:05:43.560 apply to CO two rehouse gases. Yes, well, I say science, 0:05:43.560 --> 0:05:46.520 who was working on the history of cloud science. That 0:05:46.640 --> 0:05:48.960 statement that client science was in its infancy. 0:05:49.279 --> 0:05:50.200 I knew it was wrong. 0:05:50.320 --> 0:05:52.600 I just knew that was false, because already by that 0:05:52.640 --> 0:05:55.920 time I had been working probably about five years already 0:05:55.920 --> 0:05:57.160 on the history of climate science. 0:05:57.440 --> 0:05:59.719 And I knew that already in the nineteen fifties. 0:06:00.600 --> 0:06:02.600 You know, in the fifties we see the beginning of 0:06:02.640 --> 0:06:06.039 what becomes a sustained you know, half a century of 0:06:06.080 --> 0:06:10.039 important scientific work on CO two, the greenhouse effair and 0:06:10.120 --> 0:06:14.960 its potential implications. But what I didn't know was how 0:06:15.040 --> 0:06:19.760 much had that been communicated to government. And you might 0:06:19.760 --> 0:06:23.560 recall Emergency of Doubt. We cite the nineteen sixty five 0:06:23.640 --> 0:06:26.960 Peace Sack Report on Environment that has a whole appendix 0:06:26.960 --> 0:06:29.840 about climate change. And we know by the time we 0:06:29.880 --> 0:06:32.359 wrote Merchants of Doubt, which was in twenty ten, we 0:06:32.480 --> 0:06:35.000 knew that at least President Johnson was aware of it. 0:06:35.040 --> 0:06:37.240 We know that that report landed on his desk, and 0:06:37.279 --> 0:06:41.200 we know that he mentions CO two and climate in 0:06:41.240 --> 0:06:44.560 his Special Message to Congress that year. So I knew 0:06:44.600 --> 0:06:47.960 that there was a pretty significant scientific conversation already taking 0:06:48.000 --> 0:06:51.160 place by nineteen sixty five. I knew that Dave Keeling 0:06:51.200 --> 0:06:53.840 by sixty five had already concluded that he had enough 0:06:53.920 --> 0:06:56.000 data to say, Yeah, this is going to be a 0:06:56.000 --> 0:06:58.880 big deal. And we knew that it had reached the 0:06:58.960 --> 0:07:01.640 executive branch through Peasact. But what we didn't know at 0:07:01.680 --> 0:07:04.640 that time was how broad was the conversation and did 0:07:04.760 --> 0:07:08.000 Congress know about this, because obviously we have separation of 0:07:08.040 --> 0:07:11.080 powers in the US government, so it's plausible that, you know, 0:07:11.120 --> 0:07:13.480 the executive branch might know stuff that they did not 0:07:13.640 --> 0:07:17.440 communicate clearly to the legislative branch. So that was something 0:07:17.480 --> 0:07:19.239 that I had been interested in for a long time. 0:07:19.560 --> 0:07:21.760 And then at some point I can't remember exactly when 0:07:21.800 --> 0:07:23.920 this was, but it was shortly after I moved to Harvard's. 0:07:23.920 --> 0:07:27.240 This would have been twenty thirteen, fourteen fifteen, something like that. 0:07:27.400 --> 0:07:30.080 Jody Freeman called me kind of asking the same question, 0:07:30.640 --> 0:07:32.880 you know, what did we know about what was known 0:07:33.880 --> 0:07:36.680 about this issue when the Cleaner Act was written. Because 0:07:37.280 --> 0:07:41.400 the preambleton Cleaner Act includes the words whether in climate 0:07:41.920 --> 0:07:46.160 so ut any straightforward, non tortured reading of the statue, 0:07:46.560 --> 0:07:49.080 it obviously relates to weather and climate, because the words 0:07:49.120 --> 0:07:53.960 are in the statue and were that you talks about impacts. 0:07:54.400 --> 0:07:56.160 Impacts on weather and climate are one of the things 0:07:56.160 --> 0:07:58.520 they say. It seems pretty obvious. 0:07:58.600 --> 0:08:01.080 But the other side had argued in a couple of 0:08:01.160 --> 0:08:04.440 amikas briefs, oh, well, when they used the word climate, 0:08:04.520 --> 0:08:07.160 they didn't really mean it the way we mean it 0:08:07.200 --> 0:08:10.320 today to mean global climate change. They were just talking 0:08:10.360 --> 0:08:13.960 about the climate of California or the climate of North Carolina. 0:08:14.320 --> 0:08:17.800 They were thinking about local effects and climate. Well, so 0:08:17.880 --> 0:08:20.760 we thought, well we could answer that question. And it 0:08:20.840 --> 0:08:23.920 is true that sometimes words can be used in different ways, 0:08:24.280 --> 0:08:26.680 and it is true the word climate can refer to 0:08:26.840 --> 0:08:28.200 local or global climate. 0:08:28.840 --> 0:08:29.720 So I hired. 0:08:29.520 --> 0:08:32.079 Colleen, my GRADUA student coming in the near Christiansen, who's 0:08:32.080 --> 0:08:34.240 the second althar on the paper, to just do a 0:08:34.280 --> 0:08:37.680 little bit of digging, and very quickly the project grew 0:08:37.800 --> 0:08:42.920 and we discovered this really astonishingly broad and deep conversation 0:08:43.640 --> 0:08:48.800 among scientists and among Congress and members of Congress about 0:08:48.840 --> 0:08:53.760 this issue about global climate change related to greenhouse gases 0:08:53.800 --> 0:08:56.960 in the atmosphere. And so we started working on this, 0:08:57.120 --> 0:08:58.920 raised a little money pay for calling to be a 0:08:58.960 --> 0:09:01.600 research assisted and as it grew, when we found more 0:09:01.600 --> 0:09:04.240 relevant things than we recruited in Hanna Conway to join 0:09:04.800 --> 0:09:09.079 the project. And then West Virginia happened, and this so 0:09:09.160 --> 0:09:12.840 called Major Questions doctrine. And one of the things that 0:09:13.840 --> 0:09:16.320 the court said in that case, as you know, was 0:09:16.360 --> 0:09:19.959 to introduce the standard of the vast economic and political significance, 0:09:20.480 --> 0:09:23.760 and generally that if something is a vast economic and 0:09:23.800 --> 0:09:27.640 political significance, that it raises the bar for agency regulation, 0:09:28.240 --> 0:09:31.280 and that therefore the statute has to be absolutely explicit 0:09:31.320 --> 0:09:35.680 before an agency could make choices. Now, we could argue 0:09:35.679 --> 0:09:40.200 about the justificational wisdom of that claim, but I'm not 0:09:40.280 --> 0:09:41.400 a legal experts so. 0:09:41.360 --> 0:09:43.040 I wouldn't want to get into that. 0:09:43.679 --> 0:09:47.120 But what we did know when that decision came out 0:09:47.360 --> 0:09:50.200 was that we actually had people in the nineteen sixties 0:09:50.280 --> 0:09:55.000 talking about the potentially vast economic and political significance of 0:09:55.200 --> 0:09:57.959 doing something about C two, And we even had conferences 0:09:57.960 --> 0:10:00.560 where people from Ford Motor Company had been at the 0:10:00.559 --> 0:10:03.679 conference discussing these issues. There was a report on electric 0:10:03.720 --> 0:10:06.959 cars by the Department of Transportation that specifically talks about 0:10:07.320 --> 0:10:10.880 how CO two might force us to convert the entire 0:10:11.120 --> 0:10:15.079 automobile fleet to electric. Well that kind of lit a 0:10:15.120 --> 0:10:16.839 fire on us and said, Okay, we've a work on 0:10:16.920 --> 0:10:19.559 this project for years, kind of back burner. We need 0:10:19.600 --> 0:10:21.440 to put this on the front burner and we need 0:10:21.480 --> 0:10:24.200 to get this written. And so that's the story about 0:10:24.840 --> 0:10:27.480 the paper and why it's now coming out. So it 0:10:27.600 --> 0:10:30.040 absolutely is relevant to West Virginia, but it was not 0:10:30.160 --> 0:10:32.240 motivated originally about West Virginia. 0:10:32.360 --> 0:10:33.720 That's so interesting. 0:10:33.920 --> 0:10:37.320 I know you're not a legal scholar, and I'm going 0:10:37.400 --> 0:10:40.559 to try not to ask you legal strategy question. 0:10:41.000 --> 0:10:43.560 But I have curious if you've heard from folks. 0:10:43.240 --> 0:10:48.640 In the legal realm about how having this information might 0:10:48.840 --> 0:10:51.600 help with the next I mean, like, I know, the 0:10:51.600 --> 0:10:55.760 EPA's most recent power plant guidelines have already been challenged, 0:10:56.040 --> 0:10:58.520 and I imagine that they're going to fall into this 0:10:58.760 --> 0:11:03.439 thicket of major questions doctor and now post Shavon Dufferin's 0:11:03.480 --> 0:11:04.160 staff too. 0:11:04.880 --> 0:11:06.760 Yeah, well, I'm sort of careful about that. 0:11:06.840 --> 0:11:09.240 I don't spend a lot of time talking to lawyers 0:11:09.280 --> 0:11:12.120 who are actively engaged in these kinds of cases in 0:11:12.160 --> 0:11:14.480 advance of me doing my research, because I really want 0:11:14.600 --> 0:11:18.160 us to look at the evidence as objective as possible 0:11:18.200 --> 0:11:20.400 and let the tips fall, and then it's up to 0:11:20.480 --> 0:11:24.240 lawyers and judges to decide the consequences and implications. 0:11:24.720 --> 0:11:26.880 So I mean, this isn't part of a legal strategy. 0:11:27.320 --> 0:11:29.840 And although I'm sure that some of our opponents will 0:11:29.840 --> 0:11:32.559 probably claim that it's not part of a legal strategy, 0:11:32.600 --> 0:11:36.480 wasn't written to support any kind of particular legal approach, 0:11:36.640 --> 0:11:39.760 or much less any particular case. But obviously we think 0:11:39.800 --> 0:11:41.920 it has implications. We wouldn't have done the work if 0:11:41.960 --> 0:11:44.320 we didn't think it mattered. And so let me read 0:11:44.320 --> 0:11:47.240 you something that actually Ashton wrote in response to a 0:11:47.360 --> 0:11:50.840 query from a different journalist about this. So asked MacFarlane 0:11:50.880 --> 0:11:54.800 with jdphd student who's just finished his jd at Harvard 0:11:54.880 --> 0:11:57.760 Law School and now is working with me doing a PhD. 0:11:57.880 --> 0:12:01.120 And we recruited to partici making this party because we 0:12:01.200 --> 0:12:04.200 felt like we did want a little bit more legal insights. 0:12:04.280 --> 0:12:06.760 And he's studied with Jodi Freeman and Richard Lazarus and 0:12:06.800 --> 0:12:09.960 all the big name environmental law professors at Harvard. So 0:12:10.200 --> 0:12:13.440 here's why he wrote the major questions. Doctrine requires a 0:12:13.480 --> 0:12:17.440 clear statement from Congress to authorize regulatory action of vast 0:12:17.480 --> 0:12:21.560 economic and political significance. The doctrine reflects an assumption that 0:12:21.600 --> 0:12:25.160 Congress would be exceptionally clear when granting an agency highly 0:12:25.160 --> 0:12:29.040 significant regulatory power. How do we determine what counts as 0:12:29.080 --> 0:12:32.600 a quote major question and a quote clear statement. The 0:12:32.640 --> 0:12:35.240 Supreme Court has implied that the inquiry depends on both 0:12:35.240 --> 0:12:38.840 context and history. Yet the Court missed large swats of 0:12:38.880 --> 0:12:42.360 relevant history about climate change, which we present in this article. 0:12:42.880 --> 0:12:45.320 This history is important not only to the wholesale question 0:12:45.360 --> 0:12:47.800 of whether the Cleaner Act covers greenhouse gases, which we 0:12:47.840 --> 0:12:50.800 think it clearly does and our paper then supports that, 0:12:51.200 --> 0:12:54.280 but also to the retail question of whether any new 0:12:54.320 --> 0:12:58.280 climate regulation is sufficiently well authorized. And then he goes 0:12:58.320 --> 0:13:00.439 on to say, the Court has not said, perc actually 0:13:00.440 --> 0:13:03.560 how history informs the major question analysis, nor what types 0:13:03.600 --> 0:13:06.560 of historical material matter most. Our key point is there's 0:13:06.600 --> 0:13:09.600 a whole lot of history that the Court overlooked, and 0:13:09.640 --> 0:13:12.520 it should not overlook that history in future climate cases. 0:13:12.920 --> 0:13:14.480 And I guess what I would add to that is 0:13:14.520 --> 0:13:17.480 that so much of what the Court claimed was about 0:13:17.480 --> 0:13:21.640 this issue of the clear statement, and they've repeatedly implied 0:13:21.720 --> 0:13:25.120 both in Mass versus EPA and in West Virginia, you know, 0:13:25.400 --> 0:13:27.640 sort of continue to imply this idea that there's no 0:13:27.720 --> 0:13:29.959 way that Congress could really have intended this to apply 0:13:30.040 --> 0:13:32.319 to Co. Two A because they didn't really know and 0:13:32.360 --> 0:13:36.439 be because they hadn't anticipated the vast economic significance. And 0:13:36.480 --> 0:13:39.000 we think this paper shows that both of those implications 0:13:39.040 --> 0:13:39.440 are wrong. 0:13:40.320 --> 0:13:44.560 I called up Patrick Parento at Vermont Law School to 0:13:44.720 --> 0:13:48.320 ask about how this new research might come into play 0:13:48.520 --> 0:13:51.000 in some of the cases we expect to see in 0:13:51.040 --> 0:13:52.600 the months and years ahead. 0:13:53.640 --> 0:13:58.520 The bottom line is, what we're now talking about is 0:13:58.559 --> 0:14:03.199 the margin. We know we're going to lose almost all 0:14:03.280 --> 0:14:04.920 of the cases that make. 0:14:04.800 --> 0:14:07.320 It to the Supreme Court docket. 0:14:07.720 --> 0:14:12.480 It's now a question of can you in some cases 0:14:13.440 --> 0:14:14.480 work the margins? 0:14:14.520 --> 0:14:18.200 And that means either Roberts or Barrett, maybe. 0:14:18.040 --> 0:14:23.600 Even sometimes Kavanaugh, almost never Gorsich or Alito or Thomas. 0:14:24.040 --> 0:14:27.200 If you're alert as an advocate, as a lawyer arguing 0:14:27.240 --> 0:14:28.280 these cases. 0:14:29.000 --> 0:14:30.320 There's got to be a way to. 0:14:30.160 --> 0:14:34.800 Cobble together votes if you can convince them that the 0:14:34.840 --> 0:14:38.200 text of the statue ought to be interpreted in a 0:14:38.240 --> 0:14:41.240 certain way that they call the best reading. 0:14:41.320 --> 0:14:44.560 That's where we've come to. What's the best reading? 0:14:45.040 --> 0:14:48.680 Of the text of the statue, since we're all textualists now, 0:14:49.000 --> 0:14:52.160 as Justice Kagan has famously said, and so you know, 0:14:52.480 --> 0:14:57.320 the best reading does to some extent turn on what 0:14:57.440 --> 0:15:03.560 was on Congress's mind. Intend what can we infer from 0:15:03.560 --> 0:15:07.960 the type of words and language they used was their intent? 0:15:08.160 --> 0:15:10.480 And we know that both of the cases both are 0:15:10.480 --> 0:15:11.080 the rules I. 0:15:11.000 --> 0:15:15.200 Should say that are now in litigation, the car rules, 0:15:15.240 --> 0:15:15.840 the tail. 0:15:15.640 --> 0:15:18.120 Piper rules, and the power plant rules. 0:15:19.320 --> 0:15:23.320 We know the odds are one or both of them 0:15:23.360 --> 0:15:25.200 are going to wind up on the. 0:15:25.160 --> 0:15:26.400 Supreme Court docket. 0:15:27.040 --> 0:15:31.920 But the point is the combination of all these decisions 0:15:32.040 --> 0:15:38.360 West Virginia lowerl Bright Open Ruling, Chevron Corner Post knocking 0:15:38.400 --> 0:15:41.160 out the six year statute of limitations, meaning pretty of 0:15:41.200 --> 0:15:43.920 the rules on the books is fair game. We haven't 0:15:43.920 --> 0:15:47.600 begun to see the avalanche of lawsuits that we're going 0:15:47.680 --> 0:15:51.720 to see with specific legal foundation and Koch Brothers' money. Man, 0:15:51.760 --> 0:15:54.320 oh man, So you have to look at that whole 0:15:54.560 --> 0:15:56.840 suite that we've seen, and of course we've got more coming. 0:15:57.080 --> 0:16:00.680 When you look at that, the agency lawyers and. 0:16:00.760 --> 0:16:03.760 The staff technical staff, you. 0:16:03.640 --> 0:16:08.920 Know they've got to be thinking, man, can we get 0:16:08.960 --> 0:16:14.440 five votes? Can we get five votes, you know, and 0:16:15.240 --> 0:16:17.840 do you just do a headcount and you figure out 0:16:18.160 --> 0:16:22.400 who can we get to support this interpretation. But you know, 0:16:22.480 --> 0:16:28.240 they're zeroing in on already what was It's sometimes called 0:16:28.320 --> 0:16:33.120 antecedent interpretations of a statute. 0:16:33.120 --> 0:16:34.840 In this case, we're talking Clean Air Act. 0:16:35.400 --> 0:16:38.720 So for the car rules and the power plant rules, 0:16:38.880 --> 0:16:43.160 they're going back to the nineteen seventy Act, increasing forward 0:16:43.720 --> 0:16:47.600 and the history and how they've been interpreted before, so 0:16:47.680 --> 0:16:50.800 that the newest, the interpretation. 0:16:50.240 --> 0:16:54.280 Of today is not new. So now we'll find out. 0:16:54.880 --> 0:16:55.680 Now we will. 0:16:55.520 --> 0:17:02.720 Really find out if APA's attempts to testify these two rules. 0:17:03.000 --> 0:17:08.320 We'll find out whether it's possible for EPA to get 0:17:08.359 --> 0:17:12.359 the five votes they need to uphold these two rules, 0:17:13.080 --> 0:17:20.400 or whether Morrissey and Company West Virginia Company are right 0:17:21.240 --> 0:17:25.520 that no matter what EPA tries to do to address climates, 0:17:25.520 --> 0:17:27.680 they're going to lose because everything they do is a 0:17:27.720 --> 0:17:31.960 major question. They don't get any difference. The best breaking 0:17:32.000 --> 0:17:34.560 of the statue is not what EPA says it is. 0:17:34.520 --> 0:17:34.920 Et cetera. 0:17:35.359 --> 0:17:43.679 So in that sense, this really robust, sophisticated analysis of 0:17:43.720 --> 0:17:46.520 the history of the Clean Air Act, it's got to 0:17:46.600 --> 0:17:47.320 make a difference. 0:17:48.680 --> 0:17:51.359 Okay, there are a number of things in here that 0:17:51.640 --> 0:17:54.399 are really interesting and that had not been published before 0:17:54.520 --> 0:17:57.000 and that people did not know about in terms of 0:17:57.040 --> 0:17:59.880 this history. I imagine there were things that were surprising 0:18:00.119 --> 0:18:03.440 you too. What were some of the most surprising discoveries 0:18:03.440 --> 0:18:06.480 in terms of when people were talking about what, Well, 0:18:06.520 --> 0:18:06.880 there were. 0:18:06.760 --> 0:18:07.760 A bunch of things. 0:18:08.359 --> 0:18:13.200 The biggest surprise actually was was, you know, Sports Illustrated 0:18:13.200 --> 0:18:16.480 and the Weekly Reader, and just to see the way 0:18:16.520 --> 0:18:21.280 that this had permeated into popular culture and popular conversation 0:18:21.600 --> 0:18:24.400 very very early on, and I think we all fell 0:18:24.400 --> 0:18:28.920 in love with the Alan Ginsburg piece. Here's this beat poet, right, 0:18:28.920 --> 0:18:31.080 he's a poet, not a scientist. He's on the MERV 0:18:31.119 --> 0:18:33.200 Griffith Show, which is one of the most popular talk 0:18:33.240 --> 0:18:35.960 shows on television in those days. I mean MERV Griffith 0:18:36.000 --> 0:18:39.240 was the opera of the nineteen sixties. And he's talking 0:18:39.240 --> 0:18:43.400 about climate change. He's talking about the ice caps melting, 0:18:43.880 --> 0:18:46.480 and he's linking it to cars. He says, pollution from 0:18:46.520 --> 0:18:49.359 automobiles can melt the ice cap and you know, flood 0:18:49.400 --> 0:18:51.240 the coastal cities of the world. I mean, that is 0:18:51.280 --> 0:18:54.960 one hundred percent global climate change. As we understand it today, 0:18:55.080 --> 0:18:58.919 and Alan Ginsburg has got it in a nutshell in 0:18:58.960 --> 0:19:03.080 the nineteen sixties, he's talking about it on Primetime. And 0:19:03.160 --> 0:19:06.040 then the other piece I really loved was so then 0:19:06.480 --> 0:19:09.800 and Ashton found this. So then this angry constituent in 0:19:09.920 --> 0:19:14.119 Washington State rites to his senator, Henry Jackson. And Henry 0:19:14.160 --> 0:19:16.639 Jackson was one of the most famous powerful senators of 0:19:16.720 --> 0:19:18.960 that time, someone whose name was well known to me 0:19:19.000 --> 0:19:21.280 that I remember from my own childhood. I mean, I 0:19:21.320 --> 0:19:24.080 remember we didn't like Scoop Jackson because he was very 0:19:24.160 --> 0:19:26.800 pro Vietnam War. So this is a very famous name. 0:19:26.800 --> 0:19:29.240 I mean, this whole project, all these names that I 0:19:29.280 --> 0:19:32.000 already knew kept popping up. These were not minor people. 0:19:32.320 --> 0:19:34.520 So Scoop Jackson's one of the most powerful people in 0:19:34.560 --> 0:19:37.760 the US Congress at the time. The constituentent writes to 0:19:37.840 --> 0:19:41.040 him complaining, asking him to do something about it, and 0:19:41.160 --> 0:19:43.639 Jackson reads the letter and instead of just throwing it in 0:19:43.760 --> 0:19:46.000 the bin or thinking it's a hoax or whatever, or 0:19:46.000 --> 0:19:49.560 the guy's crazy, he writes a letter to the president's 0:19:49.600 --> 0:19:53.080 science advisor Lee to Bridge. This is the advisor to 0:19:53.160 --> 0:19:57.120 Richard Nixons or Republican president, and he says to to Bridge, well, 0:19:57.400 --> 0:19:59.560 you know what about this? Is there any truth in this? 0:20:00.080 --> 0:20:02.920 And Leegia Bridge writes back a multipage letter in which 0:20:02.960 --> 0:20:06.879 he explains very carefully and patiently. He explains to Henry 0:20:06.920 --> 0:20:10.080 Jackson that yes, actually this is a real thing. And 0:20:10.119 --> 0:20:11.960 then a few months later he goes on Meet the 0:20:12.000 --> 0:20:15.480 Press again mainstream American television to talk about the issue 0:20:15.480 --> 0:20:17.520 and even says we might need to have a carbon tax. 0:20:17.720 --> 0:20:20.879 And this is in nineteen sorry I fraid of sixteen 0:20:20.920 --> 0:20:22.760 nine or seventy, but right before the passage of the 0:20:22.760 --> 0:20:26.359 Cleaner Act. So here you have a powerful senator, the 0:20:26.440 --> 0:20:30.199 science advisor to a Republican president, just talking openly and 0:20:30.240 --> 0:20:33.960 honestly about this issue and not being dismissive, not thinking 0:20:34.040 --> 0:20:37.720 to hoax, but actually taking it seriously and trying to learn. 0:20:38.040 --> 0:20:40.640 And I just thought that was kind of beautiful. It's 0:20:40.680 --> 0:20:44.000 so interesting. I also bought the Frank Capra movie. 0:20:43.920 --> 0:20:46.240 Capra Will Be Speak To And you know, mister science, 0:20:46.280 --> 0:20:49.600 I know that was brilliant too. Any Frank Capra, super 0:20:49.720 --> 0:20:52.160 famous name from the history of film. Right, So again 0:20:52.720 --> 0:20:55.439 I feel like for me, the biggest surprise overall is 0:20:55.600 --> 0:20:58.679 I knew scientists were talking about this, but as you know, 0:20:59.040 --> 0:21:01.960 a lot of scientific conversations can be very in the weeds. 0:21:02.400 --> 0:21:05.760 Scientists can really live in their own science bubble, and 0:21:06.119 --> 0:21:10.320 so what I didn't know was how broadly this information 0:21:10.400 --> 0:21:13.600 had percolated in the nineteen sixties. That I guess was 0:21:13.640 --> 0:21:16.959 the biggest surprise, And of course that reinforces our claim 0:21:17.600 --> 0:21:20.800 that Congress was aware of this. They were talking about it, 0:21:20.840 --> 0:21:23.600 they knew about it, they heard testimony about it, they 0:21:23.600 --> 0:21:28.480 were getting information from leading scientists like the President's science advisor, 0:21:28.640 --> 0:21:31.560 like the head of ENCAR, Gordon MacDonald, who's serving on 0:21:32.000 --> 0:21:36.160 CEQ at that time. Important leading scientists are talking to important, 0:21:36.240 --> 0:21:40.439 leading members of Congress, and that's crucial then in the 0:21:40.440 --> 0:21:44.480 context of the Major Questions doctrine for understanding what Congress 0:21:44.560 --> 0:21:47.119 knew about this issue and therefore what they could have 0:21:47.200 --> 0:21:48.680 intended when they wrote this law. 0:21:49.440 --> 0:21:52.040 In any of the stuff that you found, did you 0:21:52.119 --> 0:21:56.679 get any sense of why they steered clear of being 0:21:56.720 --> 0:21:58.400 more specific in the law? 0:21:58.760 --> 0:22:00.639 Yeah, I wed think we do know that answer to that, 0:22:00.960 --> 0:22:03.080 and our group had a lot of discussions about this. 0:22:03.880 --> 0:22:05.560 I mean, part of this whole thing has to do 0:22:05.600 --> 0:22:07.919 with whether or not they understood CO two to be 0:22:07.960 --> 0:22:11.880 a pollutant, and therefore whether they intended these discussions about 0:22:11.920 --> 0:22:14.800 pollution to include CO two. The answer to that question 0:22:14.880 --> 0:22:16.960 is absolutely yes, and that was one of the other 0:22:17.000 --> 0:22:21.000 big surprises. It was astonishing to us how many conferences 0:22:21.040 --> 0:22:24.600 on air pollution in the nineteen sixties discuss CO two 0:22:25.119 --> 0:22:28.360 and how many reports that are written on air pollution 0:22:29.440 --> 0:22:31.960 mentioned CO two as a pollutant. So there's absolutely no 0:22:32.080 --> 0:22:35.520 question that they understand that CO two is a pollutant. 0:22:35.880 --> 0:22:39.200 But there's two things that we think happened. The first 0:22:39.240 --> 0:22:42.879 is that there's a very clear conversation about what kind 0:22:43.000 --> 0:22:46.280 of a pollutant is it. So while they recognize that 0:22:46.320 --> 0:22:49.439 it's definitely a pollutant, they also say, and this is 0:22:49.760 --> 0:22:52.280 it still comes up even today, that it's a different 0:22:52.440 --> 0:22:55.119 kind of pollutant. And so the way we've been thinking 0:22:55.119 --> 0:22:58.240 about it now is taking a parallel from public health 0:22:58.600 --> 0:23:01.600