By Leif Fredrickson / Special To The Washington Post
On Monday, the Supreme Court heard West Virginia v. EPA. The case could thwart the Environmental Protection Agency’s ability to shift our country toward clean energy and has potential implications for subverting the basic functioning of virtually all federal regulatory agencies.
Whatever the outcome, one thing is clear: the EPA has entered a newly inhospitable era for regulatory action. Nowhere is this more true than in how the agency approaches the climate crisis. A look at the agency’s past shows how its opportunities to act on global warming have narrowed over time. But this history also reveals an important way the agency can still act: by taking a more rigorous, systematic and public-centered approach to data.
President Richard Nixon created the EPA in 1970s, designating it as an independent regulatory agency. This was by design, since some Nixon advisers worried that combining pollution control offices with the Department of Interior would allow the economic imperatives of natural resource agencies to undermine environmental protection.
It was a reasonable concern given the vulnerability of natural resources to industry influence. But it resulted in environmental protection operating as an outside regulatory force instead of being integrated into federal natural resource management and energy development.
Still, the EPA’s intended regulatory scope was expansive. Nixon gave the EPA a broad mandate to tackle new and emerging environmental problems. And with the 1970 Clean Air Act, Congress empowered the EPA to regulate all kinds of potential pollutants, including, presciently, those that threaten the “climate.”
But, initially, the agency didn’t take action on global warming. Indeed, in 1979, the eminent climate scientist and presidential adviser Gordon MacDonald argued before Congress that the EPA was neglecting its legal duty to regulate greenhouse gases (GHG). David Hawkins, head of EPA’s air division, acknowledged the need for federal action that same year. But Hawkins also indicated why the agency had taken no action: “We have all we can do keeping up with today’s problems.”
Instead, the agency rolled up its sleeves attacking problems that people confronted every day, like smog and dirty rivers. Congress delegated ample regulatory power to the agency; but also saddled it with deadlines and hearings to ensure the agency stayed on track.
In the 1980s and 1990s, the EPA made progress on pollution control, but global warming began to loom even more ominously. Yet regulatory action was still off the table. What was on the table was information-gathering: EPA produced climate policy reports for Congress, and it helped establish international institutions for addressing and monitoring climate change. Domestically, it began inventorying and monitoring GHG emissions.
This information and data policy reflected a lack of political will for regulations. But it also reflected an emerging movement advocating for the public’s right-to-know about environmental threats.
Regulations did finally come because of outside pressure. In the early 2000s, a coalition of groups sued George W. Bush’s EPA, arguing it had a duty to regulate GHGs under the Clean Air Act. The controversial case, which tapped fundamental constitutional questions about Congress’ delegation of authority, went to the Supreme Court.
In a 5-to-4 decision in 2007, the court ruled that GHGs were “pollutants” under the Clean Air Act, and the agency was legally bound to regulate them if it found them to be a danger to public health. The EPA did find they endangered public health, and it issued regulations under President Barack Obama in the 2010s. The regulations targeting power plants have, however, subsequently been subject to a paralyzing mix of lawsuits and attempted repeals during the Trump administration. They’re now in a sort of regulatory limbo.
That’s why the changing conservative composition of the Supreme Court matters. It was the current right-wing supermajority that agreed to hear West Virginia v. EPA, a case in which the petitioners ask the court to preemptively tell the EPA how to craft regulations. That is not normal.
What will happen in this case? The court could use a narrow interpretation of the Clean Air Act to hobble the EPA’s options for cleaning up the power plant sector. It’s also possible that conservative justices could deploy radical legal doctrines to sabotage the normal functioning of federal agencies. A sweeping ruling like that is unlikely, but its possibility portends a new era for the EPA.
So what options exist if the EPA can’t take the broad regulatory action on climate change?
It could improve and elevate one of its important, if largely unsung, functions: collecting and disseminating data about emissions, violations and enforcement actions. Data collection has been integral to EPA regulation from the beginning. Since the 1980s, it has developed other data inventories with the explicit purpose of informing the public. And in the early 2000s, it launched web-based tools to allow public access to data.
Still, EPA data collection has many problems. Important data that could be automatically and electronically recorded is not. Data that should be passed from states to the EPA is not. And there are many questions about the quality of data that is recorded. In addition, much of this data is not practically accessible to the public. The agency is chipping away at some of these issues, but the long-term data issues indicate it has not sufficiently prioritized fixing this.
But if the agency is willing to prioritize and fund it, better data collection and dissemination can be a powerful, parallel strategy to regulation.
First, adopting better systems for monitoring and collecting data promote compliance and make enforcement more effective. GHG regulations that are on the books will be stronger. It will also strengthen other pollution regulations, some of which have GHG reduction co-benefits. And it will also create a dynamic data infrastructure necessary to implement future climate regulations.
Second, making this data more usable and relevant to the public can build support for EPA action on climate change. The EPA is a deeply technocratic agency, and its operation can seem arcane to people. Documenting, formatting and presenting data in ways that help the public to see how policy affects them, and how they can leverage the policy, can create stronger public advocacy.
The EPA’s current regulatory ecosystem is challenging but it has a potentially strong, consistent ally: the public. It was public protest and advocacy that pressured the environmentally ambivalent Nixon to create the agency. And it was public advocacy that forced the EPA to finally regulate greenhouse gases. The EPA should build on that history.
Leif Fredrickson is working with the Environmental Data and Governance Initiative to put the Trump administration’s policies in historical context. He is also writing a book about the history of lead poisoning in Baltimore and the nation.
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