Roundup: Supreme Courts Shifts More Power from Agency Experts to Judges

July 24, 2024 | 12:54 pm
A sign on a barn housing turkeys reads BIOSECURITY AREA--a farmer trying to protect his turkeys from bird flu is inside with the animals.Nathan Howard/Getty Images
Liz Borkowski
Science Network Contributor

This post is part of a series of quarterly roundups on scientific integrity.

In the second quarter of 2024, Supreme Court decisions threatened the future of regulations based on science, EPA faced criticism for its response to the East Palestine disaster, and multiple agencies addressed the spread of bird flu.

Supreme Court eviscerates prospects for expertise-based regulations

At the end of its term, the Supreme Court dropped a group of decisions that together make it far less likely that federal agency experts will be able to use their knowledge to craft evidence-based regulations that survive court challenges. Six justices’ decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce overturned the doctrine of Chevron deference, under which courts deferred to reasonable agency interpretations of ambiguous statutes. This approach made sense because Congress intentionally writes fairly broad laws and leaves federal agencies, which are staffed by thousands of people with relevant expertise and are politically accountable to the public through the president, to craft regulations to implement them. Now, instead of deferring to the expertise of agencies that, for instance, set specific pollution limits under the Clean Air Act, courts can substitute their own judgment about what the one true meaning of the statute is and strike down regulations that don’t align with their interpretations of what the “best” reading is.

Like the West Virginia v. EPA decision of 2022, in which six justices ruled that agencies need explicit statutory authority to regulate when “major questions” are involved, the Loper Bright decision shifts power away from federal agencies—and from Congress, which intentionally delegates to the executive branch—to courts. This power grab by the judicial branch upsets the balance of powers enshrined in the Constitution. It also makes it harder for the public to influence regulations, because agencies must accept and consider public comments when regulating, but judges have no such requirement. The public can also influence executive branch actions by electing a new president, who will choose new agency leaders. Judges and Supreme Court justices enjoy lifetime appointments and are insulated from the input of a public that might desire regulation to allow them to breathe clean air and drink clean water.

In Ohio v. EPA, the Court blocked enforcement of EPA’s “good neighbor” rule designed to prevent states from harming downwind states’ residents by failing to control air pollution sufficiently. EPA now cannot enforce the rule while litigation proceeds in the lower courts. Clean Air Task Force writes that the Court “nitpicked the rule to find a single argument that was tangentially raised by commenters and barely developed in the briefing before the Court, and on that basis held that EPA had not adequately explained its rejection of that argument.” While the rule’s fate remains uncertain, this action sets a disturbing precedent of basing decisions on tangential issues rather than ones central to the case. This decision was also alarming because it came through aggressive use of the Court’s “shadow docket,” which in the past was used to resolve relatively uncontroversial issues. Here, the Court not only resolved a complex case of regulatory policy, it also interfered with a lower court’s ongoing proceedings.

If the Loper Bright decision set fire to evidence-based regulation, the Corner Post, Inc. v. Board of Governors of the Federal Reserve System decision poured gasoline on the blaze. Previously, plaintiffs had six years after an agency issued a rule to sue under the Administrative Procedure Act. The Corner Post decision instead allows plaintiffs to sue when they are first injured, which can be when a new business forms and is affected by the rule. Now, decades-old regulations that were considered settled risk being overturned if a single person (or industry) who dislikes the rule starts a new business that will be affected by them. And with courts no longer deferring to agencies’ reasonable interpretations of statute, this potential tsunami of lawsuits is far more likely to result in regulations being struck down compared to years past. Where regulations remain in place, the Court’s decision in SEC v. Jarkesy, which requires enforcement cases to be tried in federal courts rather than by administrative adjudication, will make it much harder to enforce them.

These destabilizing decisions come from justices who have responded inadequately to serious ethical concerns. Revelations of lavish gifts to Justice Clarence Thomas and other members of the Court have raised alarm about the possibility that these contributions could influence the justices’ rulings, and justices have repeatedly failed to recuse themselves from cases where they have apparent conflicts. The Court responded to these concerns by adopting a toothless ethics code that solves none of these problems. Public trust in the court has eroded, and the latest decisions further cement a pattern of the majority ruling in favor of industry.

If Congress recognizes that everyone, even business leaders, is likely to suffer in an environment of regulatory chaos and a deluge of lawsuits, it can fix the problems the Supreme Court has created and set ethical requirements that could improve public trust. The Stop Corporate Capture Act would codify Chevron deference into law. The Supreme Court Ethics, Recusal, and Transparency Act would require the Court to establish rules governing the disclosure of gifts, and the Supreme Court Ethics Act would require SCOTUS to adopt a code of conduct and appoint an ethics investigations counsel to address complaints.

Looking ahead: Constituents are calling on members of Congress to pass legislation in response to the Loper Bright and Corner Post decisions before the end of the 118th Congress.

Blowing the whistle on EPA’s East Palestine response

When a Norfolk Southern train derailed in East Palestine, Ohio, in February 2023, it spilled toxic chemicals into the community. The local incident commander decided the train cars should be detonated in a “vent and burn” operation to avert the risk of explosion, and the resulting fire spread a toxic plume of smoke through the area. One immediate consequence of the leak and fire was an estimated 3,500 dead fish in nearby creeks and streams, and residents reported problems such as headaches, sore throats, and rashes. EPA Administrator Michael Regan assured residents that robust monitoring found the air to be safe. Concerns about inadequate EPA investigation mounted, however, as tests by independent scientist Scott Smith revealed dangerous levels of dioxin in the town’s air, water, soil, and homes. Now a whistleblower has come forward to report on ways EPA failed to collect relevant data.

Dr. Robert Kroutil filed an affidavit stating that “the ASPECT airplane, a one-of-a-kind sensor system and essential disaster response tool, was not deployed properly during the East Palestine disaster.” Until January 2024, Dr. Kroutil was a data quality manager for the contracting company that managed the ASPECT (Airborne Spectral Photometric Environmental Collection Technology) airplane program for EPA. He explained that ASPECT would typically be deployed within a few hours of a train derailment, but EPA did not use it until four days after the incident. When they did fly it, they instructed the flight crew to turn off sensors when flying over contaminated creeks. EPA’s Inspector General launched a preliminary investigation into Dr. Kroutil’s affidavit. After EPA claimed the disclosure was false, GAP wrote a rebuttal letter to the Inspector General refuting EPA’s denials and demanding the agency remove misleading statements from its website.

The Government Accountability Project (GAP) represents Dr. Kroutil, and his disclosures add to the alarming pattern that emerged from EPA records GAP obtained via Freedom of Information Act (FOIA) requests. In emails, EPA officials acknowledged the likely concentration of dioxin in East Palestine, but decided not to declare a public health emergency or take similar steps to warn residents. Documents buried on EPA’s website revealed that dioxin testing by a Norfolk Southern consultant shortly after the disaster identified elevated levels of dioxin and other compounds. GAP and other organizations filed a petition to EPA, calling on it to fulfill its duty to warn East Palestine residents not to consume garden produce or wild game and not to garden in their soil. The petition cites Smith’s findings, which other scientists have corroborated, of high levels of dioxin and other contaminants in soil and water. GAP has begun to work with additional whistleblowers who are continuing to help GAP investigate the East Palestine disaster and mistakes made by EPA.

Additional evidence has also emerged regarding the venting and burning of train cars. The National Transportation Safety Board (NTSB) investigation concluded that the “vent and burn” operation was unnecessary because the temperature of the cars was decreasing — but Norfolk Southern withheld critical data and context that should have informed decision-making and threatened NTSB staff. Researchers found that the plume from the detonation reached 16 states, and affected areas included the border with Canada.

EPA and the Department of Justice negotiated a settlement with Norfolk Southern valued at over $310 million, but GAP is concerned that this is insufficient given the dioxin contamination, ongoing environmental and health hazards, health impacts on residents, and lack of transparency in EPA’s response, as well as revelations about Norfolk Southern’s problematic behavior following the crash. GAP hosted a virtual forum prior to the deadline for residents to be excluded from the settlement; it featured discussion with residents, scientists, whistleblowers, and legal experts to educate the community about information not considered in reaching the class action settlement. 

Looking ahead: GAP is currently awaiting the results of the OIG investigation into the ASPECT disclosure and EPA rebuttal letter and is inquiring why after more than a month EPA has not yet responded to their emergency petition. They continue to work with Dr. Kroutil on ASPECT’s inadequate utilization in other incidents and plan to submit a letter to the U.S. Attorney General objecting to the government’s proposed settlement with Norfolk Southern.

Bird flu spreads across the US

H5N1, a strain of influenza A also known as highly pathogenic avian influenza (HPAI) or bird flu, has been circulating in birds for several years and killing poultry flocks worldwide. Now it has mutated to become highly infectious in cattle as well. By late June, infections had been detected in 129 herds of cattle in 12 states. Only four human cases had been confirmed in the US at that point, and all of them were in agricultural workers who were likely infected via animal contact. So far, the virus does not appear to be spreading between humans, but the concern is that sustained and widespread transmission between animals increases the chances for the virus to mutate for easy human-to-human transmission and cause a pandemic.

Several agencies are monitoring and responding to H5N1’s spread. USDA is tracking and reporting on cases in cattle herds and poultry flocks, and it now requires testing of herds that cross state lines and reporting of all positive lab tests. The agency offers financial supports for milk producers to implement biosecurity measures and test animals for the virus, as well as compensation for producers whose herds’ milk production drops because of the virus. (While H5N1 often kills infected poultry, cows sickened with the virus typically recover after a period of illness that includes producing less milk.) USDA faced criticism for being slow to report early cases and continues to release genetic sequences without the complete data to help researchers study the virus’s spread.

FDA has been testing commercially produced milk; while it has found H5N1 viral fragments in many samples purchased from stores, evidence to date indicates that pasteurization effectively inactivates the virus. The agency recently began a second round of dairy product testing.

CDC launched a wastewater tracker that can show where rates of influenza A are rising, and it monitors some of those who have been exposed to infected cattle and tested a few dozen of them. At the moment, agricultural workers whose jobs involve animal contact are at the people at greatest risk of infection. Many of these workers are immigrants with limited access to transportation and no sick leave, so they might be reluctant to report symptoms that would prompt testing and could cause them to miss work and receive less pay. CDC does not have the authority to require exposed individuals to be tested, and low trust in the federal government can also hinder voluntary testing. Michigan health officials, assisted by CDC, have launched a study involving people who work with infected cows to look for markers of past infections — information that can help researchers understand the virus’s spread and whether asymptomatic infections are common.

CDC recommends protective equipment, including safety goggles and respirators, for people who work with animals or potentially infected materials such as milk, but hot conditions in milking parlors can make it difficult to wear such gear for extended periods of time. The Administration for Strategic Preparedness and Response, which is part of the Department of Health and Human Services, is making protective gear, antivirals, and other resources from the strategic national stockpile available to state, tribal, local, and territorial health officials who request it. CDC also recommends that people avoid drinking raw milk.

Looking ahead: In the coming months, the response could include vaccinating workers at risk of H5N1 infection.

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