If you care about having clean water and air, then pay close attention to the U.S. Supreme Court’s hearing on West Virginia v. EPA, later this month.
What is at stake is nothing less than the nitty gritty work of turning sweeping laws passed by Congress into enforceable policies and regulations. Federal agencies like the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA) write regulations to implement laws passed by Congress, like the Clean Air Act of 1970 or the Clean Water Act of 1972. Later this year when the US Supreme Court rules on West Virginia v. EPA, following the February 28th hearing, it will effectively be ruling on the very authority and ability of federal agencies to do that regulatory work. Sounds wonky and legalistic, right? Perhaps so, but there really couldn’t be more at stake.
What is West Virginia v. EPA?
In this case, West Virginia (the plaintiff) and a handful of other states and actors in the coal industry are challenging the extent of EPA’s authority to regulate carbon dioxide emissions from existing power plants under the Clean Air Act. But they are also attempting to bring forward a larger issue: the “major questions doctrine.” This conservative legal theory suggests that when it comes to “major questions,” meaning questions that are particularly important politically or economically, federal agencies need a clear congressional mandate to develop and enforce regulations.
As is the case for many laws passed by Congress, the Clean Air Act doesn’t spell out every single activity, threat to air quality or pollutant the EPA may need to regulate in order to meet the goal of the Act to protect public health and welfare from air pollution. Rather, the law was written so that EPA has the authority to identify and regulate emerging pollution problems—and solutions. Having that general authority makes sense because Congress can’t foresee every situation in which government action will be needed in order to meet its legislative aims. Nor can it foresee, for example, every pollutant/species/resource/threat that will need to be monitored, measured, or regulated, or the solutions that may be available to limit them. For example, in 1970 when the Clean Air Act was written, Congress—and most of us—didn’t know about the dangers of 1-bromopropane, a chemical used primarily for cleaning purposes. It’s now known to be toxic and likely carcinogenic. Earlier this year, the EPA, using its authority under the Clean Air Act, was able to add it to the list of hazardous air pollutants it regulates.
Should the Supreme Court rule that EPA does not have broad authority to regulate heat-trapping emissions—in other words, issue an expansive ruling in favor of West Virginia—it would deal an enormous blow to the US’s near- and longer-term emissions reduction goals and, by extension, our planet’s climate.
That would be disastrous.
And then it gets worse.
Because such a ruling could also set a dangerous precedent that hampers the authority of federal agencies to responsively develop and modify regulations based on evolving science. As described below, the EPA may be unable to move forward on reducing pollution of “forever chemicals” or PFAS under the Clean Water Act. Worker safety rules responding to new threats like extreme heat would be even harder to implement unless explicitly mandated by Congress. Conservation measures for land and ocean wildlife and the use of natural resources and public lands may be undermined, and on and on.
Taking away federal agencies’ authority would put the health and safety of our air, our water, our food, our bodies, the ecosystems around us, and much more under threat. In other words, in a system of laws and rules that is already tipped in favor of industry, it will undermine the public health, safety and environmental protections to further allow industries to avoid the costs of protecting public interests while pursuing profits. If everything must be spelled out by Congress, lobbying power will completely rule each and every issue. That’s because agencies that skirt the mandated goals of our laws can be held to account in court. Agencies must by law adhere to scientific evidence by and large. But Congress is not required to do so.
5 things at stake in West Virginia v. EPA
Many of the laws that keep our society safe and functioning depend on the ability of designated federal agencies to nimbly plan, prepare, and regulate for and in response to rapidly evolving science. Not sure just how much depends on this agency-level authority? If SCOTUS goes too far and constrains the regulatory power of federal agencies, then Congress, yes Congress that currently is so stuck, would be responsible for creating regulations.
Here’s what is at stake:
- Toxic chemicals. Through the Toxic Substances Control Act (TSCA), Congress authorizes the EPA to test, regulate, and screen chemicals produced or imported into the US. This only makes sense because Congress can’t keep up with technological developments that will create new toxic substances or industrial processes that release new and more toxic substances. Researching the potential dangers of the thousands of chemicals collectively known as per- and polyfluoroalkyl substances (PFAS) and setting appropriate statutory limits for those chemicals in our environment is a task to which EPA is well-suited and Congress is not.
- Safe drinking water. The Safe Drinking Water Act authorizes the EPA to set limits for contaminants that can and do show up in our drinking water. But the law is forward-looking in that it requires EPA to publish a list of additional contaminants being considered for regulation every five years. This structure allows EPA to be responsive to the evolving set of contaminants affecting our water and our evolving understanding of the health hazards of already monitored contaminants. It would be prohibitively time-consuming for Congress to perform this role. If SCOTUS rules in favor of West Virginia, regulating emerging contaminants like chromium-6, made popular by Erin Brockovich’s fight for the residents of Hinkley, California, could be outside of the EPA’s purview.
- Pandemic protections. During the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) issued a moratorium on evictions for those who hadn’t kept up with rent or mortgage payments. The agency’s reasoning was that evictions during a pandemic could harm public health efforts to keep COVID-19 infections at bay. In August, 2021, however, SCOTUS ruled that the CDC did not have the authority to issue such a moratorium, essentially evoking the major questions doctrine in saying that the CDC had overstepped its bounds. Similarly, SCOTUS determined that the Occupational Safety and Health Administration (OSHA) did not have the authority to mandate that businesses with more than 100 workers require their workers to be vaccinated against COVID-19. But it did leave the door open for OSHA to justify vaccine mandates based on specific conditions in industry sectors that warrant it, such as when workers are required to be indoors in close proximity to others.
- Engineered life forms. The components of plant-based meat, microbes designed to consume pollutants, and algae-based fuels are all examples of synthetic biology, or the application of engineering principles to biological organisms to design versions of those organisms that serve specific purposes. EPA, the Food and Drug Administration, and the Department of Agriculture are all involved in regulating synthetic biology in the US, with the EPA’s Chemicals Program providing oversight and risk governance given its authority under the Toxic Substances Control Act. With the science of synthetic biology evolving rapidly and the number of engineered organisms ballooning, regulation of such activities and products has had to develop quickly and effectively and will continue to have to do so in the future. If SCOTUS rules in favor of West Virginia, Congress—not the FDA—for example, would be figuring out how lab-made “meat” increasingly available for consumers to eat should be regulated.
- Extreme heat in the workplace. The Occupational Safety and Health Administration recently embarked upon the rule-making process to set heat-protection standards for workers. As part of the Department of Labor, OSHA is authorized to create rules to threats like extreme heat under the Occupational Safety and Health Act. As wildfires, heat waves, floods, and other types of extreme weather emerge as growing threats due to climate change, OSHA will need to be responsive to how those extremes affect workplace safety. Given SCOTUS’s recent ruling against vaccine mandates for large businesses, one has to wonder how the court would rule should legal challenges to OSHA’s heat-protection standards arise.
If those 5 don’t scare you, here are 10 more
That’s just the tip of the iceberg of what is at stake if SCOTUS issues an expansive ruling in favor of West Virginia later this year. What else could be affected? How about:
- Marine resource management
- Fisheries management
- Marine mammal protection
- Endangered and threatened species protection
- Emergent disease identification, response, and control
- Response to climate tipping points (especially with respect to systems that require advance planning, policy and regulation to avoid major harm, like food production in California’s Central Valley or the energy and water supplied by Colorado River)
- Regulation of how short-lived climate pollutants are affecting our climate
- Household water availability
- Coastal readiness as hurricanes intensify in response to climate change
- Storm water management
The list could go on and on.
Why this case and why now?
One of the craziest things about all this is that SCOTUS will be hearing a case about rules the EPA hasn’t even written yet.
That’s right, EPA currently has no rule for regulating greenhouse gas emissions from existing power plants. The Obama-era Clean Power Plan was repealed by the Trump Administration, and that administration’s toothless Affordable Clean Energy rule was vacated.
Fifteen years ago the Supreme Court ruled in Massachusetts vs. EPA that the EPA does have the authority to regulate carbon dioxide and other greenhouse gases under the Clean Air Act. Now, two years into what could be the most consequential decade for preventing catastrophic climate change, it is deeply troubling that the foes of climate action are picking this fight, here, now. It’s 2022 and we are being held hostage by fossil fuel interests who question the government’s very authority to ensure our future safety by regulating emissions.
Let me just say this again: SCOTUS is about to hear a case about rules the EPA hasn’t even written yet.
The fact that SCOTUS has taken up West Virginia v. EPA signals that the court could be seeking to limit the power of federal agencies in ways that could affect generations of Americans and gravely slow down progress to reduce carbon emissions—and so much more. Watch this case closely. Oral arguments will be on February 28, 2022, with a decision expected in late June or early July.