Loper Bright Enterprises v Raimondo: Impact on the Environment

Rachel Carson wrote, “Man's attitude toward nature is critically important simply because we have now acquired a fateful power to alter and destroy nature. But man is part of nature, and his war against nature is inevitably a war against himself.” ¹ Carson, whose book Silent Spring was on The New York Times best-seller list for 86 weeks, documented the effect of pesticides on the natural world. Her brief tome coalesced a nascent environmental movement and set in motion a chain of events that have reverberated throughout the world. It is little wonder that in 1969, an oil spill of about 100,000 barrels off the coast of Santa Barbara, California, and the Cuyahoga River fire in Ohio became the nidus for change. President Nixon was appalled by the sight of dead dolphins, sea lions, seals, and birds, and the nation was dumbfounded that a river could actually catch fire. The following year, the first Earth Day was celebrated (April 22, 1970), and in July 1970, Nixon proposed the establishment of the Environmental Protection Agency (EPA). The Wilderness Medical Society (WMS), and in turn, our journal, Wilderness and Environmental Medicine (WEM), are an outgrowth and direct result of the advocacy and passion for the natural world recognized during the mid-late 1900s. ²

Times have changed. The earth is warmer, and carbon dioxide levels in our atmosphere have increased at a precipitous rate during the Anthropocene epoch. ³ The rise in global temperatures has led to subtle and dramatic changes in human health. In one proposed model, epithelial injury to the skin, lungs, and gastrointestinal tract is considered a sentinel event in response to an increase in temperature and particulate matter. ⁴ Mental health, arthropod-borne infections, and cardiovascular disease increase with higher temperatures and increased particulate matter.^4–6 On a macro-level, “slow-onset climatic disasters” due to sea-level rise, drought, and increased water salinity as well as severe, catastrophic events such as earthquakes and storm-induced flooding have led to increased human migration and political instability. ⁷ While so much of the discussion regarding climate change has become politicized, actuarial data has resulted in economic changes even the most skeptical person can understand—insurance rates have skyrocketed nationally, and many companies no longer insure coastal properties due to rising sea levels and wind.

It is likely too late to have an immediate impact on climate change, as it will take decades to reduce carbon levels in our atmosphere. On the other hand, is it reasonable to amplify the problem? Choices regarding public land use and the relevance of regulatory agencies are now at play. The recent United States Supreme Court decision, Loper Bright Enterprises v Raimondo (otherwise known as the Chevron deference case), dealt a blow to federal agency oversight and, implicitly, the ability of expertise to guide regulation. Chief Justice John Roberts wrote: “Perhaps most fundamentally, Chevron's presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do…” ⁸ In her dissent, Justice Elena Kagan wrote, “In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. . . . As if it did not have enough on its plate, the majority turns itself into the country's administrative czar.” ⁹

The implications of the case in regard to the environment and climate policy are enormous. Federal agencies designated to combat climate change and act as environmental stewards will limit their scope and are at risk of being cast aside. The EPA and the Department of the Interior will be impacted. Undoubtedly, litigation will increase as cases make their way up the court's hierarchy, and some observers fear administrative chaos due to overturned precedents. ⁹ It is important to consider the consequences of dismantling the EPA and other federal safeguards to our environment and the wilderness. Los Angeles was formerly described as if a “dirty gray blanket” had covered the city, and school was regularly canceled for smog days. ¹⁰ Dioxin contamination led to the evacuation and eventual dismantlement of Times Beach, Missouri, in the 1980s. ¹¹ Mining may resume in areas our readership cherishes. The EPA, sometimes championed and frequently maligned, has had successes in our cities and towns, and has had a profound impact on our environment. Through its regulations on greenhouse emissions, it has contributed to planetary health. It has been argued that the cost of regulation is also in the billions and leads to decreased productivity and increased business costs. While there are certainly significant costs from regulation, several thorough cost-benefit analyses have also found a beneficial impact of environmental regulation on the US and world economy. ¹⁰ Kizer et al noted, for instance, that through enforcement of the Clean Power Plan, the EPA estimated improved air quality would have major cardiovascular benefits to the population and lead to a reduction in missed school and work days and would yield an economic benefit of $34 billion. ¹² Before throwing the baby out with the bathwater, appropriate and detailed research should examine the risks and benefits of overturning environmental regulations.

Other regions of the world face similar challenges in regard to policy. A paucity of research, government instability, and struggling economies have resulted in an uneven adoption of environmental policy and regulation in South America. ¹³ Navigating environmental policy in the immediate and long term may be challenging. Guidance may be sought by relying on the original and evolving intent of the WMS. During Paul Auerbach's last years, he wrote extensively on climate and health, steering clear of politics while noting that climate resilience will require a coordinated effort from federal and local agencies focusing on communities. ¹⁴ He also recognized that newly minted health physicians and students would lead the charge. ¹⁵ As Dr Auerbach wrote, “The fuse is lit, it's time to act.” ¹⁶