Opinion: The Clean Air Act — and legal precedent — are at risk this Supreme Court term


The Supreme Court will soon hear a case that could 'eviscerate the EPA's ability to implement the Clean Air Act to protect our environment.'

For more than a half century, the Environmental Protection Agency and the Clean Air Act have been at the center of America's protection of our environment. They have been essential tools in reducing toxic substances like arsenic in the air we breathe, in overcoming smog and acid rain crises of the 1980s and 1990s. Pollution cuts have "saved millions of lives and trillions of dollars."

But the work of the Clean Air Act and the EPA is not done — far from it. Indeed, all of the progress we have made on environmental protection to date pales in comparison with what the future demands, as climate change poses an existential threat to the livability of our nation and our planet.

Left unchecked, climate change will make Americans sicker, poorer, and less secure. Diseases like malaria, all but unknown in America, will spread; food and water will be scarcer. Wildfire smoke will make breathing our air difficult and deadly. Natural disasters and disease will weaken our economy, impoverishing millions. Climate change is dramatically affecting everyday life across America: impacting our health, harming our economy, and taking the lives of our loved ones and neighbors. As CNN notes, climate-fueled weather disasters "have cost the United States more than $750 billion over [the] past five years."

Our health, our security, our very lives depend upon our ability to meet the climate crisis head-on, with robust policies that will help prevent the worst impacts, and help us live with those we cannot prevent. A fully functional EPA carrying out its mandate under the Clean Air Act is not sufficient to meet our climate crisis, but is necessary in order to do so.

All of that — the progress we have made to date, and our future ability to combat ever-greater threats — is now at risk, with the Supreme Court poised to roll back decades of environmental protections and hamstring efforts to prevent the worst effects of climate change. On Monday, the court will hear a case that could eviscerate the EPA's ability to implement the Clean Air Act to protect our environment. If the court sides with energy companies and partisan politicians in West Virginia v. EPA, it would cast aside a half century of environmental progress enacted by bipartisan consensus, embraced by the public, and buttressed by decades of Supreme Court precedent.

The EPA itself was created more than fifty years ago by a Republican president with the approval of a Democratic congress. The Clean Air Act was originally enacted in 1963 after passing the Senate 73-0, and has subsequently been strengthened and expanded by Congress and the White House. Most notably, the Clean Air Act Amendments of 1990 passed both houses of congress with overwhelming majorities, winning 401 votes in the House and 89 in the Senate — even Mitch McConnell and Newt Gingrich voted for them — and was signed into law by a Republican president. Since then, the law has been not only popular but effective, with benefits exceeding costs by a factor of more than 30 to 1.

In short: A bipartisan collection of elected officials have enacted and implemented popular and effective environmental policies for a half century — longer than most Americans have been alive — with the support of decades of court precedent. It's a crystal clear example of what prospective Supreme Court justices like to call "settled law."

So why worry?

Because we could describe the Voting Rights Act precisely the same way — or we could have done so before the Supreme Court gutted it in 2013 and took a pickaxe to what was left of it earlier this year. The court's right-wing supermajority simply does not care about settled law, precedent, or deference to laws passed by overwhelming bipartisan majorities in Congress.

If the right-wing majority chooses to overturn 50 years of settled law on popular environmental policy, it will further undermine the already plummeting credibility of the court. A recent Gallup survey showed the Supreme Court's approval rating had reached a new record low in the 20-year history of the poll, with just 40% of Americans approving of the court. The court's approval rating has dropped by 18 percentage points since July 2020, after the rushed appointment of Justice Amy Coney Barrett and its radical decision allowing a six-week abortion ban to go into effect in Texas.

Gutting long-standing environmental law would only worsen the court's already severe credibility problem. Americans widely support the Clean Air Act, with 75% of voters supporting the EPA enforcing stricter limits on air pollution. Just 19% of Americans believe the EPA's authority should be weakened, according to a 2017 Reuters/IPSOS poll. This term, the court will have to choose whether it stands with fossil fuel special interests or with 80% of Americans and a 50-year legal precedent.

Chief Justice John Roberts said in 2019, "We will continue to decide cases according to the Constitution and laws without fear or favor. That's necessary to avoid the politicization of the court." Should the court overturn EPA authority, it would only further that politicization, and it would increase the political momentum behind essential reforms, including court expansion.

But the biggest impact would be on the American people's health. According to the EPA, in 2020 alone, Clean Air Act regulations prevented 230,000 early deaths, averted 120,000 emergency room visits, and saved 5.4 million potential lost school days for students who might have otherwise suffered debilitating respiratory illness. If the Supreme Court guts EPA authority, it would be directly responsible for the excess deaths currently prevented by life-saving pollution regulations.

And, a ruling to overturn bedrock EPA authority could effectively open a Pandora's Box to strip away any governmental power to keep Americans safe, potentially threatening a wide variety of protections from workplace safety to access to birth control, overtime pay, and vaccination. If the conservative justices choose the most extreme path, attacking the broader authority of Congress to delegate regulatory powers to federal agencies, this could undermine the functioning of government as we know it.

Making agency action dependent on Congress passing a new law would hobble the ability of regulators to provide the services and protections of the federal government — perhaps exactly what the powers behind this case had in mind. And something we should all be very concerned about.

In the West Virginia v. EPA case, it's not just America's clean air that is on the line — it's the fundamental protections and laws that every American family depends upon.

Sarah Lipton-Lubet is the Executive Director of Take Back the Court. She clerked for the Honorable Nancy Gertner of the U.S. District Court for the District of Massachusetts and the Honorable Richard Paez of the U.S. Court of Appeals for the Ninth Circuit.

Jamal Raad is a co-founder and executive director for Evergreen Action, a climate action policy and advocacy organization that has played a key role in shaping the policies in the Build Back Better Act. Jamal previously served as an aide to Washington Gov. Jay Inslee and Oregon Sen. Jeff Merkley.

Published with permission of The American Independent Foundation.