Is Saving The Environment Really a “Major Question?”
September 2022 | Kira Kramer (Staff Writer and Editor) and Annie Vong (Associate Editor)
Climate change is intruding into every aspect of human life. As carbon continues to build in the atmosphere, climate change will cause “increasing temperatures, shifting precipitation patterns, ocean acidification, sea level rise, and increasing intensity and frequency of extreme weather events.” [1] Given the rapidly changing environment, what has the government done in the past to preserve the environment? The Clean Air Act of 1963 (CAA) gave the federal government the authority to monitor and control air pollution through regulation. [2] Simultaneously, the federal government passed the National Environmental Policy Act (NEPA), creating the Environmental Protection Agency (EPA). [3] Through the CAA, the EPA–along with local, state, and tribal governments–were able to regulate hazardous pollutants, acid rain, and ozone through setting limits, also known as “standard[s] of performance.” [4]
In Massachusetts v. EPA (2006), Massachusetts sued the EPA for not regulating carbon dioxide and other greenhouse gas emissions. [5] The EPA argued that the CAA did not give them the authority to regulate greenhouse gas emissions and that they would need to do further research on the impact and extent of climate change. [6] The Court decided in a 5-4 decision that the EPA did have authority to regulate any air pollution agents via the CAA. [7] This case utilized the doctrine of “Chevron Deference,” which stated that federal agencies may produce regulations necessary to their organization as long as those regulations are not explicitly restricted. In this case, because regulating air pollutant agents was not inappropriate or explicitly restricted, the EPA had the authority to craft and enforce regulations. The majority opinion stated that the language in the CAA was “sweeping” and “capricious,” meaning that the EPA would not be restricted to regulating a small amount of pollutants. [8]
However, sixteen years later, the Supreme Court would issue its judgment on West Virginia v. EPA (2022), limiting the EPA’s authority to regulate greenhouse gas emissions. [9] During President Obama’s administration, the EPA formulated a plan called the Clean Power Plan (CPP) to put limits on carbon dioxide emissions within stationary power plants by requiring coal-fired power plants to reduce production or subsidize natural gas, wind, or solar power production. [10] Under the CPP, states were in charge of making sure that power plants within their borders followed those carbon limits. West Virginia and a number of other states challenged the EPA, stating that the CPP reached beyond the EPA’s authority given to them by Congress. The final decision was split among ideological lines, with Chief Justice Roberts joining Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett in favor of West Virginia. Meanwhile, Justices Breyer, Sotomayor, and Kagan sided in favor of the EPA, with Justice Kagan authoring the dissenting opinion.
In the majority opinion, the Supreme Court wrote that under the ‘Major Questions Doctrine,’ the law states that the EPA cannot take action to regulate carbon and methane emissions unless there is “clear congressional authority” to do so. [11] The ‘Major Questions Doctrine’ declares that “a rule of major economic and political significance [is] flatly unlawful unless Congress provided a clear statement authorizing the agency to promulgate such a regulation [that] the Major [Questions] Doctrine would ensure that Congress’s legislative power is usurped by neither the executive agencies nor the judiciary.” [12] This ruling did not necessarily overrule Massachusetts v. EPA, but rather it said that the Clean Power Plan went too far. According to the Supreme Court decision in West Virginia, agencies that regulate matters of “political or economic significance” must approve their regulations through Congress first, whereas before they could just enact their legislation because it was in their jurisdiction to do so. In the dissenting opinion, however, Kagan wrote that Section 111 of the Clean Air Act gives power to the EPA to regulate any substance that “may reasonably be anticipated to endanger public health or welfare” and that the EPA’s plan to regulate carbon dioxide fits within that description. [13]
Historically, agencies like the EPA were able to use their ‘broad discretion’ in order to operate, using their ability to act within their best judgment without overstepping their bounds or acting in a way which is explicitly restricted–per the ‘Chevron Deference’. However, by using the ‘Major Questions Doctrine’, the courts are able to curtail the ‘Chevron Deference’ by stating that intervention must occur on major questions of political or economic importance. The Supreme Court has not clarified what agency actions could constitute as a major question that Congress must explicitly authorize. In a highly-polarized political climate, what test or parameters are there for agencies to know if their actions are too political and need to be explicitly stated by Congress? After the overturning of Roe v. Wade, would the FDA need explicit congressional authority if they were to regulate medication that could induce abortions? Would the FBI need explicit congressional authority to investigate crimes committed by high-profile political figures like former President Trump or Hunter Biden? This decision will not only affect the EPA, but it could also diminish the capacity of other agencies.
The continued use of the ‘Major Questions Doctrine’ puts Congress in charge of restricting or approving regulations for all types of agencies, not just the EPA. With severe political polarization and a gridlocked Congress, there are concerns about whether or not change can be made. The climate crisis does not have time to wait. While this may be somewhat difficult to imagine, Nevada is already seeing the effects of climate change take place. Summers grow hotter and longer, while winters get drier and colder. The valley is even seeing some snow, which is highly unusual for the usual desert climate. The Eastern United States experiences more severe blizzards and snowstorms, as well as hurricanes and monsoon storms. Additionally, zoologists are considering humankind’s current state in geologic time to be a state of eventual mass extinction as a result of human interference with the environment. According to the World Health Organization, “Between 2030 and 2050, climate change is expected to cause approximately 250,000 additional deaths per year, from malnutrition, malaria, diarrhea and heat stress, [and] the direct damage costs to health (i.e. excluding costs in health-determining sectors such as agriculture and water and sanitation), is estimated to be between USD 2-4 billion/year by 2030.” [14]
There are significant health ramifications as a result of this ruling. Pollutants found in factory emissions emit chemicals such as sulfur dioxide, nitrogen oxides, mercury, and other respiratory irritants that can lead to chronic health conditions and emergency situations such as “heart attacks, heart failure, strokes, blood clots, lung cancer, and Parkinson’s disease.” [15] Furthermore, increased levels of exposure to carbon dioxide over time can lead to “inflammation, reductions in higher-level cognitive abilities, bone demineralization, kidney calcification, oxidative stress, and endothelial dysfunction.” [16] Due to the dangerous nature of these emissions, legislative action needs to occur to protect people from these adverse health risks. The climate crisis is not just looming in the foreground of some yet to be seen future generation’s life–it is killing people now.
What is even more horrific about the climate crisis is how it disproportionately affects people of color and other vulnerable communities. Countless studies have identified that vulnerable populations are more likely to live near polluting facilities, which puts them at greater risk for the health ramifications of air pollution. [17] As it stands currently, these vulnerable populations also have unequal access to healthcare facilities and experience prejudice from the medical community. [18] The rising rates of comorbidities and chronic health conditions in America puts stress on the healthcare system, which causes a chain reaction of worsened quality of and access to medical care.
While decarbonizing the economy is difficult and costly, especially for the fossil fuel industry, those resources are in the process of depleting. Eventually, the world will have to depend on other fuel sources in order to power the global economy. Furthermore, people’s health and wellness is an integral part of what keeps economic development in motion. It may be costly to transition society towards a greener lifestyle, but if no one takes action, the cost for human beings will be grave. Although the ruling in West Virginia is certainly a step backward, there can still be efforts by national, local, and individual initiatives to work towards reducing CO2 emissions.
The U.S. has an especially heightened responsibility to reduce its carbon emissions because this country ranks 13th highest emissions per capita. [19] Seeing as the U.S. is a world leader in producing mass amounts of greenhouse gasses, the goal of the Clean Power Plan (CPP) was to reduce air pollution by limiting greenhouse gasses and only allowing companies to produce regulated amounts of emissions. [20] At their heart, programs like these are designed to combat the disastrous consequences of climate change’s progression. As such, the U.S. cannot afford to strike down aggressive plans like the CPP in the fight against climate change. Otherwise, humanity will pay the price.
Sources
“Effects of Climate Change.” WWF. World Wildlife Fund.
Evolution of the Clean Air Act.” EPA. Environmental Protection Agency, December 7, 2021.
National Environmental Policy Act of 1969, U.S.C. § 4321 et. seq.
Clean Air Act of 1963, U. S. C. §7411(a)(1).
Massachusetts v. Environmental Protection Agency, 549 US 497 (2007) (Stevens, J.P.).
Ibid.
Ibid.
Ibid.
West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022).
U.S. Environmental Protection Agency. “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” Federal Register 79, no. 117 (June 18, 2014): 34830.
West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) (Roberts, J.).
Sebring, Michael. “The Major Rules Doctrine.” Georgetown Law. Georgetown Journal of Law and Public Policy, September, 2018.
West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) (Kagan, E. dissenting).
“Climate Change and Health.” World Health Organization. World Health Organization.
Schimelpfening, Nancy. “How the Supreme Court's EPA Ruling May Affect Your Health.” Healthline Media, July, 2022.
Jacobson, Tyler A., Jasdeep S. Kler, Michael T. Hernke, Rudolf K. Braun, Keith C. Meyer.
and William E. Funk. “Direct Human Health Risks of Increased Atmospheric Carbon Dioxide.” Nature Sustainability 2, no. 8 (2019).
Daw, Jonathan, PhD. “Contribution of Four Comorbid Conditions to Racial/Ethnic Disparities in Mortality Risk.” American Journal of Preventive Medicine 52, no. 1 (2016): S95–S102.
Ibid.
“Carbon Footprint by Country 2022.” Carbon footprint by country 2022, 2022.
Schimelpfening, Nancy. “How the Supreme Court's EPA Ruling May Affect Your Health.” Healthline Media, July, 2022.