When the Trump administration took the extraordinary step this year of killing the government’s authority to regulate greenhouse gases, it made a simple argument: The Clean Air Act doesn’t allow it.
Thomas Jorling, who helped write the Clean Air Act, disagrees.
The 1970 Clean Air Act became law more than a half-century ago, when climate change wasn’t as widely recognized a threat. But Mr. Jorling said in a recent interview that he and the other authors of the legislation had known that scientists would continue learning about new pollutants, and so the bill was meant to be flexible enough to encompass them.
Regulating planet-warming emissions is “perfectly consistent with the Clean Air Act,” he said.
The act is now at the center of one of the Trump administration’s most aggressive efforts to weaken environmental regulations in the United States. In February, the Environmental Protection Agency revoked what is known as the “endangerment finding,” a 2009 scientific conclusion by the agency that greenhouse gases endanger human health.
With that, the E.P.A. effectively killed the federal government’s power to regulate greenhouse gases from new motor vehicles and other sources, like power plants. The legal fight over the change is already underway, driven by Democrat-led states and environmental groups, and is expected to eventually reach the Supreme Court.
Mr. Jorling’s views put him dramatically at odds with the modern Republican Party. But back in the 1970s, he was at the center of the action as a lawyer advising Republican senators on the writing of a bill that they were cosponsoring. It was the sort of bipartisan cooperation that has all but disappeared in more recent years.
In a recent interview from his home in Williamstown, Mass., where he is retired at age 85, Mr. Jorling spoke about the drafting of the legislation and his understanding of the lawmakers’ intent when they were hammering out the details. He said the lawmakers had essentially tried to future-proof the law by making it adaptable as new information about air pollution became available. They were insistent, he said, “that we don’t want, any time a new pollutant is discovered, to have to come back to Congress” and require that lawmakers pass a new law.
Their intent, he said, was to “write a structure that accommodates regulating different categories of pollutants, and when new ones come along, they are incorporated right into that regulatory scheme.”
He noted that the bill’s stated objective was to “protect public health and welfare” and that the Senate report on the bill at the time defined welfare as referring to adverse effects on things including soil, water, man-made materials, animals, visibility, climate and economic values, among others.
“The specific reference to climate is unambiguous,” Mr. Jorling said.
In February, Lee Zeldin, the administrator of the E.P.A., announced the rescinding of the endangerment finding with President Trump, calling it the largest act of deregulation in the nation’s history. The E.P.A. argued that the 1970 Clean Air Act applies only to direct, localized pollution, whereas greenhouse gases spread far and wide and therefore aren’t subject to regulation.
The E.P.A. argues that policies designed to encourage a shift to cleaner electric vehicles represent what it has referred to as “major questions” (as opposed to smaller or more routine policy decisions) and therefore should be determined by legislation. The agency also said that emissions from American vehicles play too small a role in global warming to warrant regulation.
“This action will save American taxpayers over $1.3 trillion,” Mr. Zeldin said when announcing the change. He went on to say that the endangerment finding had “strangled” sectors of the American economy, including the auto industry. “It claimed new powers over the vehicles we drive,” Mr. Zeldin said.
On Friday, Brigit Hirsch, the E.P.A. press secretary, said it was “great that Mr. Jorling still has strong opinions about an act he helped draft over 50 years ago, but the E.P.A.’s job is to follow the law as it is written, not as one Senate aide remembers it from 1970.”
She said that the agency had considered the endangerment finding in light of subsequent Supreme Court decisions limiting the power of federal agencies and had concluded that the law did not give the agency the authority to impose vehicle emissions standards to address climate change.
Mr. Jorling is outspoken in his criticism of the administration. Of Mr. Zeldin, Mr. Jorling said, “His job is to protect health and the environment, and he’s taking actions which are contrary to that responsibility.”
At the time that the 1970 Clean Air Act was written, Democrats controlled Congress. The act’s primary driver was Senator Edmund Muskie of Maine, a Democrat, assisted by his key aide, Leon G. Billings.
Several other lawmakers, both Republicans and Democrats, played crucial roles in the drafting of specific provisions that gave the Clean Air Act its teeth. They included Howard Baker, Republican of Tennessee, and Thomas Eagleton, Democrat of Missouri. And the Senate committee that Mr. Jorling worked for was led by Senator John Sherman Cooper, Republican of Kentucky.
Mr. Jorling and Mr. Billings worked together closely in those years, sometimes coming to agreement as they carpooled to or from the Capitol in Mr. Billings’s pickup truck, Mr. Jorling recalled.
David Hawkins, a longtime Natural Resources Defense Council lawyer, said of Mr. Jorling, Mr. Billings and Mr. Muskie that if there were a Mount Rushmore of environmental protection, “the three of them would be up there.” Mr. Muskie died in 1996, and Mr. Billings in 2016.
In the years leading up to the act’s passage, American cities had been plagued by smog created by vehicles and power plants. The 1970 amendments to the Clean Air Act greatly expanded a basic version of the law that had been passed seven years earlier and gave the newly formed E.P.A. the power to enforce strict emissions standards.
It led to enormous improvements in air quality by forcing carmakers to install catalytic converters, which make exhaust less harmful.
The 1970 bill passed nearly unanimously, and was signed into law by President Richard M. Nixon. Some experts have called it the most powerful environmental law in the world.
Charles S. Warren, a longtime environmental lawyer who first met Mr. Jorling on the Hill in 1970, said Mr. Billings had also credited Mr. Jorling with ensuring that the concept of the “citizen suit” was enshrined in the law. That’s a provision that allows citizens to file lawsuits against companies or government agencies for violations of the law, which became a major focus for environmental groups.
Global climate change was not a major headline in the 1970s, but that changed in the decades that followed. By 2009, the E.P.A. had expanded its oversight to carbon dioxide and other greenhouse gases that cause climate change, after a heated court battle with states and environmental groups that went to the Supreme Court.
In that landmark 2007 case, Massachusetts v. E.P.A., the justices ruled that the Clean Air Act required the agency to determine whether greenhouse gases from new vehicles endanger public health or welfare and, if so, regulate them. The agency had put off making that “endangerment finding” until then, arguing that the Clean Air Act was designed to address local, direct pollution, not global atmospheric phenomena, among other points.
Now the E.P.A. is reprising those arguments.
Mr. Jorling predicted that the agency would struggle to make that argument in the courts. “The basic structure and net effect of the Clean Air Act is, it did accommodate addressing the new challenge that climate change presents,” he said.
Karen Zraick covers legal affairs for the Climate desk and the courtroom clashes playing out over climate and environmental policy.
The post He Helped Write the Clean Air Act. He Fears for Its Future. appeared first on New York Times.
