The Clean Air Act is a good example of the protections we require more than ever.


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Its recent acquisition DecisionIn West Virginia v. EPA, which reined in the Environmental Protection Agency’s authority to address climate change, the Supreme Court wrote into precedent an idea that has been gaining traction for years in conservative legal circles. The concept is also known as “The…” “major questions” doctrineAccording to this ruling, regulatory agencies cannot take action with broad-ranging economic consequences unless Congress specifically authorizes them.

The case concerned the powers granted by the Clean Air Act, the landmark 1970 law that— in the absence of legislation specifically dealing with climate change—has been the best tool available for checking greenhouse gas emissions. And while the Court now constrains the federal government’s power to tackle big issues, the Clean Air Act was designed to address just such “major questions”—including, explicitly in its text, questions yet to be understood when it was enacted.

I explored the act’s remarkable and inspiring history in my book Choked: The Age of Air Pollution: Life and Breath. The legislation was the product of a different time, when Washington—flawed and far from perfect, to be sure—still functioned, and members of Congress felt an obligation to engage with the problems the country faced. At the time, air pollution was so severe that it could be seen as thick brownish clouds hovering over cities. Soot darkened shirt collars and windowsills—not to mention the lungs of those who breathed it. With a significant set of amendments to the Clean Air Act in 1990, a decrease in air pollution was possible. Nearly 80 percentFrom 1970 to 2020 Enabling millions more Americans to live longer and saving trillions in dollars.

By limiting the Biden administration’s ability to use the Clean Air Act to achieve similar reductions in greenhouse gases, West Virginia v. EPAThis makes it more difficult to take serious climate action. Future rulings from conservative justices eager to further hobble regulators’ power could bring Other obstacles.

The court’s hostility to aggressive regulatory action, of course, is shared by the radicalized Republican Party that shaped its current membership. A GOP whose politicians routinely reject scientific findings is holding American politics hostage, leaving the federal government with little capacity to tackle the “major questions” that confront us, from climate change and pandemics to brutal inequality and systemic racism.

The Clean Air Act, though, is proof we once had that capacity—and, perhaps, that we can get it back. As the climate clock ticks faster and more interconnected crises loom over America, politicians need to put the public interest above the profits of large corporations.

That’s what the Congress that passed the Clean Air Act did. The law’s enduring strength has come from the thoughtful, innovative way it was crafted and its grounding in science. Shepherded into life by Senator Edmund Muskie, a Maine Democrat, it won unanimous Senate approval and passed the House with just one “no” vote. Nixon, the Republican President, was not passionate about environmental causes. However, his political sense and ability to see that the public desired action on smog made him a sharp politician. He signed the Clean Air Act in December 1970. MonthHe was the one who created the EPA.

To tell the story of act’s origins, I interviewed Tom Jorling, who in 1970 was a young lawyer advising the Republican senators on Muskie’s Subcommittee on Air and Water Pollution. The lifelong FreundschaftThe warm relationships Jorling formed with Leon Billings, his Democratic counterpart, were a mirror of the close bonds between their bosses. Some prominent political figures were represented on the subcommittee, including Howard Baker and Bob Dole, who went on to be Senate majority leaders.

From the beginning, the panel’s consideration of what Congress would have to do to make a real dent in air pollution—and why previous efforts had failed—was a serious process. Jorling explained to me that the hearings were not for shouting or showboating, but for gathering information and hashing ideas. The senators asked questions and listened to each other’s answers. They also joked together and continued on until the end. And while they “each had individual views on certain things, you couldn’t tie that back to a partisanship,” Jorling said.

The level of trust and cooperation among the members—unimaginable today—was unusual even in that less partisan time. “‘Why?’ is the question that Leon and I continued to ask each other,” Jorling told me. The one thing the senators all shared was their service in World War II. This was the idea that the pair kept coming back to. “They went through something in a way that said, ‘Democrat, Republican, it doesn’t make any difference.’”

The bill that was drafted by the subcommittee was every bit as extraordinary as the process it produced. The Clean Air Act brought about a major expansion of federal regulatory power under a Republican president, aimed above all at protecting Americans’ health. It contained a number of first-of-their-kind provisions, including one known as “citizen suit,” which provides the basis for individuals to sue polluters and governmental entities that fail to adequately enforce the law.

It was crucial that the senators had the vision to ensure the viability of their bill. They knew scientific understanding of air pollution and its harms was evolving rapidly—too rapidly for Congress to keep up by continually passing new laws. The act ordered the EPA not only to review the limits it had set for different pollutants every five year and to update them according with the latest science but also to examine whether any new pollutants were being identified.

That is the basis of the Obama and Biden administrations’ use of the Clean Air Act to undergird regulation of climate-warming gases such as carbon dioxide and methane. In 2007, the Supreme Court ruled the Clean Air Act included greenhouse gases. It came as a pleasant surprise to many in the environmental world that last month’s ruling did not reverse that finding. Nonetheless, the decision, which bars regulations aimed at pushing coal from the country’s energy mix, limiting the EPA instead to requiring carbon-cutting measures at individual power plants, will severely curtail the agency’s ability to address climate change.

Chief Justice John Roberts Jr.’s opinion is vague on what defines a “major question,” so uncertainty will now hang not just over many environmental regulations, but also rules on food and drug safety, financial services and more.

All of which only adds to the urgency of the reminder the Clean Air Act’s history offers that America, not so long ago, was able to engage substantively with serious problems and craft solutions grounded in scientific evidence. If we are to forestall climate catastrophe—and find answers to the other “major questions” pressing in on us—we need leaders prepared to do so once again.

This article is an opinion/analysis article. The views expressed by the author/authors are not necessarily the opinions ofScientific American.


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