The Supreme Court just left the Earth to burn

In the long shadow of the abortion ruling, another public health threat loomed this term in the Supreme Court. Thursday, the threat emerged in a form many of us feared: The court limited the Environmental Protection Agency’s ability to regulate carbon dioxide emissions from power plants under the Clean Air Act by reaching out to strike down a defunct 2015 regulation not even on the menu for the Biden EPA to revive.

In the United States, power plants are the largest industrial emitters of greenhouse gases. That these emissions should be regulated to mitigate public health harms and protect public welfare is a straightforward proposition. Congress designed the Clean Air Act such that endangerment of public health and welfare would be, in fact, a trigger for regulation. Accordingly, from the earliest days of the law’s implementation, EPA regulated power plants because they pose an array of risks to public health.

Scientists have confirmed again and again that greenhouse gas emissions, including those from fossil fuel-fired power plants, have changed weather patterns and natural cycles across the world, resulting in serious harms. In the United States, these changes include more frequent heat waves, higher average temperatures, more forest and urban fires, more air pollution, longer and intensified allergy seasons, more potent and frequent storms and flooding and expansion in the range of disease-carrying insects.

The consequences of such changes are widespread and compounding, and render all the more devastating the opinion removing an important tool from the suite needed to address climate issues with the urgency they demand. For example, volumes of peer-reviewed studies establish climate change-linked rises in heat-related illnesses, air pollution-related respiratory and cardiovascular illnesses, injuries and deaths caused by fires and storms, the spread of diseases like Zika and Dengue, and increases in asthma attack-triggering pollen and mold.

While these health impacts manifest across the United States, they fall heavily on specific populations. Communities of color and low income, young children, pregnant women, the elderly and those with common pre-existing conditions are most vulnerable to the health impacts of climate change. If this list seems familiar, it is because many of the same segments of our society will be most aggrieved by the court’s other public health decisions this term.

Worse, the court did not need to take up West Virginia vs. EPA because the Biden administration publicly abandoned the Obama-era Clean Power Plan at issue in the case. Nor did the court need to issue the broad opinion it did.

The court now demands that any significant or important regulatory action be rooted in a “clear congressional authorization.” But who is the arbiter of what qualifies as one of Chief Justice John Robert’s so-labeled “extraordinary cases” requiring such heightened scrutiny? Unelected justices who are the least accountable to voters in our system of government. To decide a case with ample prudential reasons to pass, to ignore the mountain of evidence establishing the public health basis and necessity for the type of regulations the court now curtails, and to side-step the congressional delegation of authority to agency experts in this field required a shocking level of judicial activism.

At the same time the justices carve out for themselves this radical new responsibility, they hamstring Congress by imposing an impossible standard for writing legislation to address exigent issues. Lawmakers do not possess the foresight to write laws in crystal clear terms about health threats, science and technology that by their very nature evolve and emerge. No one does. And that threatens congressional delegations of authority for science-based decision-making to the EPA, Food and Drug Administration, Centers for

Disease Control and Occupational Safety and Health Administration. But of course, that is the aim of the conservative supermajority. Their end game to circumscribe, if not dismantle, the administrative state is well afoot.

So what are the results for our public health and environmental agencies, and for those who understand that delayed action on climate change will have a devastating physical toll measured in lives shortened and lives lost?

First, if we take the court at its word, there remains opportunity for future EPA rules regulating carbon dioxide from power plants that do not include “generation shifting,” the type of regulation the court specifically struck down. EPA can also still regulate greenhouse gases from motor vehicles. Second, there is nonetheless a thumb on the scale now against regulatory action, as advocates can merely invite a jurist to find the action “extraordinary.” Third, the court has revealed itself to be severely out of step with science and society, and untethered from judicial restraint.

Accordingly, when we act on climate — and we must act — we must do so clear-eyed about who sits on the high court and what their agenda has so obviously become.