The irony of a jubilant Fourth of July parade I attended with my kids last week — with marching bands, people in costume, and colorful floats — is that the U.S. government has never been more chaotic. The fragility of our democracy has been thrown into sharp relief over the past few months with a partisan Supreme Court placing a heavy finger on rightward leaning scales and the great unknown of November elections. The legislative branch of government, with all its foibles, then becomes the most secure path forward for those of us who like to breathe air, drink water, and not overheat.
The Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo on June 27 overturning what’s known as “Chevron deference” prioritizes business interests over public health in a decision that weakens the ability of agencies to enforce regulations, such as restricting power plant pollution. It says that agencies like the Environmental Protection Agency (EPA) are actually not the experts in environmental protection, but rather judges are. Now, agencies must go to court with industries that dump pollutants into the water or that poison our air because their right to make money precedes everyone’s right to breathe.
There is an obvious problem with this: judges are not experts in everything, only the law. When I take care of patients, I don’t present a variety of therapeutic approaches to a judge so they can adjudicate what I should prescribe. I work with my patient to find the right treatment for them. Similarly, I don’t want a judge and an oil company deciding how much environmental damage is just enough because they are decidedly not experts in environmental or public health protection, nor do they necessarily have the public interest at heart.
The downstream consequences of the ruling are broad. Anything that requires regulation could be affected: from publicly funded health insurance programs (CMS) to the food and drug review systems (FDA) to our environment. For decades, Chevron deference has protected programs like Medicare and Medicaid, with expert federal agencies like CMS being charged with interpreting and implementing the regulations. Issues related to environmental, public, and individual health are extremely complex and should be in the hands of experts, but after this Supreme Court ruling, experts’ hands are tied.
Those of us working to protect public health have supported regulations to advance air quality standards and to limit toxic substances like PFAS. Environmental regulations form a bulwark, checking the potential unregulated greed of industries whose corporate goals are profit and not public health (not even the public health of their shareholders). The hostility to government regulation also comes at the expense of the lives of the hostile: overturning rules that protect all of us will harm the entire country. It amounts to shooting ourselves in the foot, with the caveat that insurance companies can argue in court if they want to cover the doctor bills.
Many medical societies came together to draft an amicus brief from which Justice Elena Kagan drew on in her dissent as she highlighted the “judicial hubris” that the court has demonstrated in its overreaching power play. The long-standing rule of Chevron deference has allowed agencies to protect and advance the public’s health and has ensured that healthcare laws are interpreted and implemented appropriately. Since the Supreme Court’s conservative majority seeks to upend the power of administrative agencies to do their jobs, legislation appears to be one of our few options to protect public health from climate and environmental degradation.
For example, one legal theory that has come up time and again is a carbon price that would function independently of a biased judiciary and would nudge the economy toward clean energy options and thus a healthier planet. Such federal legislation would acknowledge the health costs of climate change and fossil fuel pollution and be an effective means to reduce climate pollution. Congressional authority to cap carbon dioxide emissions was even noted by Chief Justice John Roberts to be a “sensible solution,” although the Chevron ruling curtails EPA’s ability to engage in cap-and-trade systems. Federal legislation that places a steadily increasing carbon fee at the source (where coal, oil, or gas comes out of the ground or into the country), rather than cap-and-trade, may circumvent those limitations while at the same time catalyzing the predictable transition to healthy non-carbon forms of energy throughout the country.
What we have seen the Supreme Court do is the exact opposite of democracy. It pins the biases of a minority against the welfare and well-being of the majority. With a judicial branch in the pocket of big business and fossil fuel, it becomes even more important to support legislation that cannot be so easily undone. Putting a price on carbon pollution is one example of commonsense and economically feasible legislation that has a chance to extend the environmental protections our communities deserve.
I waved my flags with everyone else at that July 4 parade, but that doesn’t mean I’m satisfied with the current state of the government. I want our leaders to do better to support us and our health.
Elizabeth Cerceo, MD, is an associate professor, academic hospitalist, and director of climate health at her medical school. Cerceo also co-chairs the Education Committee and Climate-Smart Health Care Committee for the Medical Society Consortium on Climate and Health. Her views do not necessarily reflect the views of her employer.
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