This op-ed was originally published in The American Prospect.
After the Supreme Court’s decision last month rejecting the Biden vaccine mandate for large employers, it wasn’t just the public health community that was asking “where do we go from here?” Environmental activists and attorneys immediately recognized that the Court’s reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA.
On the surface, the vaccine case and West Virginia appear to involve totally different issues. NFIB was a challenge to an emergency regulation from the Occupational Safety and Health Administration (OSHA) that required large employers to either verify COVID-19 vaccinations or compel their employees to wear masks and get tested. In a 6-3 decision, with the three liberals dissenting, the Court stayed the regulation as beyond OSHA’s authority, in part because OSHA had never addressed viruses in the workplace before.
West Virginia, which the Court will hear on February 28, is a blockbuster case. At stake is whether EPA can use the Clean Air Act to address greenhouse gas emissions from the electric power industry, which represent about a quarter of all U.S. emissions. Given how they ruled last month in NFIB, the Court’s conservatives are likely to use the case to gut EPA’s authority. And in the process, they might strengthen legal doctrine that would curb federal agencies’ power on a broad range of other issues, like health care, financial regulation, and consumer protection.
The link between West Virginia and the January decision in NFIB is the “major questions doctrine,” an anti-regulatory device that the conservative wing of the Court has embraced with a bear hug. The major questions doctrine says that when Congress chooses to delegate authority to a regulatory agency like OSHA or EPA, it must “speak clearly” if it wishes to “assign to an agency decisions of vast economic and political significance.”
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Noah Sachs | February 24, 2022
After the Supreme Court's decision last month rejecting the Biden vaccine mandate for large employers, it wasn't just the public health community that was asking "where do we go from here?" Environmental activists and attorneys immediately recognized that the Court's reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA.
Allison Stevens | February 23, 2022
In this post, we take a look at the Environmental Justice for All Act, legislation originally introduced in 2021 that would strengthen environmental standards and create safer and healthier communities for all, regardless of race, ethnicity, or income. A recent Congressional committee hearing on the act might finally be moving the legislation forward.
Jamillah Bowman Williams, Marcha Chaudry | February 22, 2022
In a fair and just country, corporations are held accountable in the courts if their irresponsible behavior harms people. However, like many policies, the communities most impacted by forced arbitration are historically marginalized groups. Indeed, forced arbitration has a disproportionate impact on low-income Americans and Black and brown women when they are the victims of discrimination. Their abuse goes beyond the general adverse impacts of forced arbitration, noted in a new report by the Center for Progressive Reform.
Karen Sokol | February 21, 2022
On Jan. 25, the U.S. Court of Appeals for the Fourth Circuit held oral argument in Baltimore v. BP PLC, a case in which the city is seeking to hold BP and other fossil fuel companies liable in state court for their systematic deceptive marketing campaign to hide the catastrophic dangers of their products. The goal of their decades-long, ongoing disinformation campaign: to lock in a fossil-fuel based society—and continue reaping astronomical profits—even during a fossil fuel-driven climate emergency. Other cities, counties, and states have brought similar suits in their state courts, all invoking long-standing state deceptive marketing laws. So why is Baltimore's case before a federal appellate court? The panel's three judges wanted to know—and the answer is more misrepresentation.
Jake Moore | February 17, 2022
The U.S. Environmental Protection Agency's (EPA) Office of Land and Emergency Management recently released its draft Environmental Justice Action (EJ) Plan. The office's EJ Action Plan lays out four goals to guide and motivate its push toward equity and climate justice. These include: strengthening compliance with cornerstone environmental statutes and civil rights laws, integrating environmental justice considerations into OLEM's regulatory process, improving communications and collaborations with communities in carrying out OLEM policies, and carrying out Biden's Justice 40 initiative to deliver 40 percent of clean energy and climate benefits to disadvantaged communities. While well-intentioned, these aspirational goals require filling out.
Sidney A. Shapiro | February 14, 2022
When the Wake Forest University emergency communications systems called me at 12:01 am on Tuesday, February 1, I could not have guessed that it was about a chemical bomb capable of wiping out blocks and blocks of Winston-Salem, North Carolina. The call warned university students to heed the city’s voluntary evacuation of the 6,500 people living within in a one-mile radius of the Winston Weaver fertilizer plant that was on fire — and in danger of exploding. Thankfully, the fire did not injure anyone, and the bomb did not ignite.
James Goodwin | February 10, 2022
The regulatory system is quite literally democracy in action, as it invites and empowers members of the public to work with their government to implement policies to keep our drinking water free of contaminants, ensure that the food on store shelves is safe to eat, prevent crooked banks from cheating customers, and much, much more.
Marcha Chaudry | February 9, 2022
A few years ago, Roschelle Powers took a routine trip to visit her mom, Roberta, at her nursing home in Birmingham, Alabama. When Roschelle opened the door, she found her mother vomiting, disoriented -- and clutching a handful of pills. Roberta’s son, Larry, visited a few days later and found his mom alone and unresponsive. She died soon after – with 20 times the recommended dose of her diabetes medication in her blood. The Powers family charged the nursing home with misconduct, but the company denied responsibility -- and the family couldn’t take their case to court because they had signed a contract that robbed them of their right to a free and fair trial. Instead, contractual legalese forced them to settle their dispute in a rigged system of arbitration rather than in an impartial court of law. My colleagues and I share this story, chronicled in a New York Times investigation of forced arbitration, in the opening pages of our new report about the disproportionate toll this widespread practice has on marginalized and vulnerable groups.
Darya Minovi | February 8, 2022
Last week, my colleagues and I advocated for a pair of clean water bills in Maryland and Virginia, which were spurred by research completed by the Center for Progressive Reform (CPR). This two-part blog series explains why. Part I, which ran yesterday, explores our collaborative work to protect clean drinking water in Maryland. Today, we look at our efforts to protect Virginia’s health and environment from toxic chemical spills.