The reasons to applaud the recent decision of the federal appeals court upholding EPA’s suite of actions regarding greenhouse gases are many. It recognizes once again, as did the Supreme Court in Massachusetts v. EPA, the huge body of robust scientific evidence supporting the connection between human-created greenhouse gases and climate change. It engages in thoughtful textual analysis of the Clean Air Act’s key provisions protecting the nation from significant deterioration of air quality. And it playfully quotes a childhood favorite of mine, Schoolhouse Rock, in discussing our legislative process.
But donning my public health hat in place of my lawyer hat, what struck me the most about the decision was the court’s reaffirmation of the Precautionary Principle as the undergirding basis for the Clean Air Act, and its discussion of science-based decisionmaking in the face of uncertainty. The Precautionary Principle is a bedrock of public health policy and advocacy, holding in its basic form that action should be taken where there is evidence that not doing so would cause harm. It recognizes that, to quote a Congressional House Report from 1977, “decisionmaking about the risks to public health from air pollution falls on ‘the frontiers of scientific and medical knowledge,’” and so we should not remain paralyzed in the face of some uncertainty.
As Congress recognized in adopting the principle as the guidepost for the Clean Air Act, to adequately protect public health and welfare we must have a system that can carefully assess the scientific evidence and act in a preventive mode to stop threats before concrete harms occur, in addition to mitigating fully known harms that are already happening. In other words, we can’t afford to wait until there are bodies on the street.
The D.C. Circuit’s decision this week makes the precautionary focus of the CAA abundantly clear, reaffirming its decisions in two prior cases from over thirty years ago:
“[The Act’s] language requires a precautionary, forward-looking scientific judgment about the risks of a particular air pollutant, consistent with the CAA’s ‘precautionary and preventive orientation… Requiring that EPA find ‘certain’ endangerment of public health or welfare before regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it in § 202(a) – utilizing emission standards to prevent reasonably anticipated endangerment from maturing into concrete harm… ‘[R]equiring EPA to wait until it can conclusively demonstrate that a particular effect is adverse to health before it acts is inconsistent with both the [CAA’s] precautionary and preventive orientation and the nature of the Administrator’s statutory responsibilities. Congress provided that the Administrator is to use his judgment in setting air quality standards precisely to permit him to act in the face of uncertainty.” (p31)
It recognizes that questions at the boundaries of science will each be unique and require an in-depth weighing of what we know about risks and harm:
“the § 202 inquiry necessarily entails a case-by-case, sliding-scale approach to endangerment because ‘[d]anger… is not set by a fixed probability of harm, but rather is composed of reciprocal elements of risk and harm, or probability and severity… [EPA] may base an endangerment finding on ‘a lesser risk of greater harm… or a greater risk of lesser harm’ or any combination in between.” (p33)
And it emphasizes that Congress did not think narrowly or statically about actual and potential harms to health, but created a broad-based and adaptive strategy to address threats from air pollution in whatever form:
“…while localized air quality is obviously one concern of the PSD program, a comprehensive reading of the statute shows it was also meant to address a much broader range of harms. As an initial matter, the PSD provision’s ‘Congressional declaration of purpose’ section expansively provides that the program is intended ‘to protect public health and welfare from any actual or potential adverse effect… from air pollution.’” (p63, emphasis original).
In the face of recent attacks on EPA’s public health measures – aimed with particular zeal at greenhouse gases but also levied at measures to reduce carcinogens and other air toxics – and even the CAA itself, the court’s discussion reminds us of the concerns that motivated a bipartisan Congress to pass and strengthen the Act’s core health protections:
- “To emphasize the preventive or precautionary nature of the act, i.e., to assure that regulatory action can effectively prevent harm before it occurs; to emphasize the predominant value of protection of public health.”
- “To assure consideration of the cumulative impact of all sources of a pollutant in setting ambient and emission standards, not just the extent of the risk from the emissions from a single source or class of sources of pollutant; to require consideration of cumulative or synergistic effects of multiple pollutants to mandate evaluations of total body burden of contaminants.”
- “To assure that the health of susceptible individuals, as well as healthy adults, will be encompassed in the term ‘public health,’…”
(from House Report 95-294, 1977). These same principles should guide us today. During the forty years since the Act’s adoption, science has advanced our knowledge of threats that were only partially understood back then, confirming that our actions to reduce pollution and toxics have been more than justified. The benefits of these reductions far outweigh their costs, proving the adage that an ounce of prevention is worth a pound of cure.
Not only should these principles guide us, but as the court confirmed this week, they are the law of the land.