Friday, December 11, 2020

Climate change and the US Clean Air Act

President Nixon signs the Clean Air Act of 1970
Richard Revesz recently posted a piece on climate change regulation, "Bostock and the End of the Climate Change Double Standard", forthcoming in the Columbia Journal of Environmental Law. The abstract explains that the article "performs a deep dive into the legislative materials surrounding the enactment of the Clean Air Act of 1970. After uncovering a treasure trove of sources that had not previously been part of the public discourse, it shows how, under the interpretative approach of each of the three opinions [in the US Supreme Court decision of Bostock v. Clayton County (2020)], greenhouse gases are unquestionably pollutants for the purposes of the Clean Air Act."

The article goes on to argue that

Despite the abundance of legislative history demonstrating Congress’ awareness of and concern about climate change, much of the evidence was not brought to bear in arguments in support of the Act’s authority to regulate greenhouse gases.... The analysis of the legislative history undertaken here, therefore, is largely new to the dialogue surrounding the Clean Air Act’s authority to regulate greenhouse gases, and provides considerable evidence of the scope of Congress’ awareness of issues involving global climate change preceding at the time of the passage of the Act.


Despite the lack of virtually any discourse surrounding the references to climate change in the legislative history of the Clean Air Act of 1970, the legislative materials... provide considerable evidence that Congress understood and was concerned about issues surrounding climate change during the time of the Act’s debate and passing. 

The article goes on to detail the many statements and reports regarding climate change in general and global warming in particular that were part of the legislative history of the 1970 Clean Air Act Amendments. 

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