Former EPA Chief: Supreme Court Ruling Is a Body Blow’ to U.S.


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The Supreme Court’s recent ruling that the U.S. Environmental Protection Agency does not have the power to regulate power plant emissions will seriously hamper U.S. efforts to slow climate change. So says Christine Todd Whitman, who served as EPA administrator under George W. Bush for three years, and was New Jersey’s first woman governor. Whitman says the ruling will also kill worldwide confidence in U.S. climate action—which could lessen the resolve of other big polluters, such as India and China, to cut their own emissions.

In an interview with Scientific American, Whitman called the Court’s decision “a body blow” to America and predicted that it will make regulation more cumbersome and costly. Since Nixon’s 1970 establishment of the agency by Republican President Richard Nixon, industry lobbyists as well as political ideologues continue to challenge EPA regulations.

Whitman believes that the EPA will need to find creative ways of continuing its mission. The major push for clean electricity will be made by the states.

[An edited transcript of the interview follows.]

Conservatives on the Supreme Court say the EPA should not regulate power plants in a sweeping way because Congress hasn’t directed the agency to do that. False?

The EPA is often blamed for many things. We put up a pollution bill at the beginning of the Bush administration that would have set the first real limits on mercury, and we couldn’t even get Congress to hold a hearing on that bill. To assume that Congress now is suddenly going to change course and listen to science, and make these critical decisions for our health, I simply don’t understand the reasoning of the Court. In fairness, the agency would far rather have Congress act on climate change than to have to address it strictly through regulation—because regulation always ends up in the courts, and it takes forever and costs a bunch of money [to litigate]. The bad actors continue doing what they do.

Are the Court’s naivety or calculations that Congress will not be able to create effective regulations?

I think it’s the latter. I’m afraid the Court is pushing a political agenda. Instead of taking cases that arise naturally to them, they reach down to lower court decisions that can be brought up that will continue the move towards deregulation. In their rulings, they are ignoring the Supreme Court’s own precedents. The EPA will not be the last. You are going to see it bleed over to the Food and Drug Administration—how we scrutinize food safety, drug safety. This agenda is being promoted by the Court’s big industry, big pharma, and energy companies.

Does all of this give you déjà vu? The Bush Administration advised you to lower pollution levels and you ultimately resigned.

That’s right. Our [EPA]Scientists were telling my one thing and the administration telling me to set the bar in a different area. I kept getting numbers from them that weren’t based on the science, but were clearly coming from the utilities themselves. So I quit the agency.

It’s a thankless job.

For me, success meant being attacked from both sides. That was when I realized I was exactly where I needed to go.

After the power plant ruling you tweeted: “The Supreme Court decision handed down today assigns the responsibility of deciding what’s best for human health to the Congress, which has no clue on how to analyze scientific data.” Are we losing the ability to use science to inform policy in the U.S.?

Unfortunately, it seems that we are.

Between 2016-2020, 672 scientific professionals were lost at the EPA. Are the Biden government able attract the talents the EPA needs?

Not entirely. It is because far too many people working in these agencies need Senate confirmation. They really shouldn’t, because they are not making the kinds of decisions that require that kind of oversight. There are a number of positions that have still not been filled because they haven’t gotten through the hearing process.

If Congress does not act and the Administration is stripped of its regulatory authority then who is going to be the leader?

The states are going to have the future. They’re going to have to be more protective now, because Congress just isn’t going to do it. New York State: Yesterday, the governor [Kathy Hochul]Signed legislation that committed the state to reducing carbon emissions by around 90 percent. States will be the ones taking the action.

Are you concerned about red state attorneys general being empowered by the Court’s decision to challenge other EPA regulations

Absolutely. At one time, one in four candidates for state attorneygeneral was an election denier. There’s a scary number of them running for secretary of state, state attorney general and governor. And if you elect a bunch of people who are very conservative and want to set things back, they’re going to be able to do it.

Michael Regan, President Joe Biden’s EPA administrator, says the Supreme Court ruling is “disappointing” but “it doesn’t take us out of the game” and “we are going to use all the tools in our toolbox” to fight carbon pollution. What are some of those tools, you ask?

They can now work on it individually, using smaller regulations and not the comprehensive approach they would have had if they had a wider regulatory approach.

What about legal tools that EPA has to fulfill its mandate.

I’m not a lawyer; I’d leave that up to the legal department. They will look for any and all solutions to this problem, I am sure. The current White House has correctly made climate change the responsibility of every agency—housing, for example, changing building requirements as we have in N.J. and N.Y. to make buildings more energy efficient, to make appliances more energy efficient. These are the types of things that will need to be done.

Is the Court ruling going to have a chilling effect on the EPA’s willingness to even propose ambitious new regulations, knowing that they are likely to be shot down?

This might be a deterrent to younger scientists joining the agency. However, the existing staff are dedicated professionals who will continue to make every effort to help the mission move forward.

The Paris Agreement stipulated that the U.S. would reduce emissions by 50% by 2030. What are our chances of fulfilling that promise now?

Extremely unlikely. And the rest of the world is beginning to wash their hands of us, which is really troubling because it means other big polluters like India and China are going to say, “Well, if the United States is not going to do it, we won’t do it either.” This decision sets everybody back. Other nations don’t have confidence in us anymore. We must have an impact on these COP in order to make any sort of difference. [global climate change]Meetings are becoming more complicated.

Some people argue regulation is bad for the economy. But doesn’t industry look to government to establish clear policies that will give it the confidence to make long-term investments?

Absolutely. That’s what is so frustrating about the Court decision. Industry doesn’t want to have to meet the regulatory standards of 50 different states and three territories. If they have one set of regulations here, another set there—it’s a nightmare. It’s very costly, which means products cost more. It’s mind-boggling. You have a Supreme Court that is said to be conservative; you’d think they want to save people money, not to mention save lives! It will take many years for us to understand how profound this effect is and how far-reaching. It’s a body blow in so many ways.

What does the EPA do?

The EPA will continue doing what it can. So will industry’s great actors. We can’t move away from our commitment, our responsibility. But we’re going to have to become more creative about it going forward.


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