Court ruling to limit EPA’s authority a blow to NJ’s environmental justice communities

ANDREW S. LEWIS | JULY 4, 2022

NJ Spotlight News

Newark residents protest a possible fourth power plant in April.

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On Wednesday, not long after the U.S. Supreme Court delayed for a day the release of its decision on West Virginia v. Environmental Protection Agency, a case that would determine the federal government’s ability to regulate greenhouse gas emissions in the future, Maria Lopez-Nunez considered the impact on her neighborhood, Newark’s Ironbound.

“What the court is weighing on hasn’t even happened,” said Lopez-Nunez, the deputy director of organizing and advocacy for the Ironbound Community Corporation, an advocacy organization. “It’s sad, because it’s almost like even the imagination of justice is being punished here.”

The Ironbound, a 4-square-mile wedge of Newark, is surrounded by three power plants and the largest sewage treatment facility and garbage incinerator in New Jersey. The cumulative result of so much pollution in such a condensed area has resulted in the Ironbound being one of America’s most recognized “sacrifice zones” — communities, usually low-income and of color, that are near industry that produces toxic emissions.

For years, Lopez-Nunez has been helping to lead the Ironbound Community Corporation’s fight against these plants in their neighborhood, the state and EPA in the hope of finally improving the dismal quality of the air they breathe.

A ruling in favor of West Virginia, which experts were warning was all but certain, would be a blow to environmental justice communities like the Ironbound across the country, Lopez-Nunez said. “I don’t understand what the government’s role is if it can’t even offer the most basic of protections,” she said. “It’s sending a chilling message that the government has no power to help people.”

At a little after 10 a.m. Thursday morning, Lopez-Nunez had gotten the chilling message she feared would come: The Supreme Court ruled in favor of West Virginia. It is a decision, climate experts and world leaders agree, that positions the U.S. as a country unwilling to fully confront the dire and present consequences of the unnaturally warming planet.

‘New roadblocks … to preserve our climate’

“West Virginia v. EPA installs new roadblocks in the already uphill battle to preserve our climate, limiting the Environmental Protection Agency’s power to regulate emissions from power plants,” wrote Emily Sanders of the Center for Climate Integrity, an organization that focuses on greenhouse gas emitters being held accountable for climate change. “It’s an unabashed victory for the fossil fuel industry, which worked for decades to produce this outcome.”

In its most basic sense, West Virginia v. EPA has asked the court to determine if the Clean Air Act allowed the EPA to issue broad, proactive regulations to curb greenhouse gas emissions across the country’s power sector — or, as the plaintiffs argued, that the agency’s power is limited to more pointed oversight, like plant-by-plant enforcement.

The case hinged on an Obama-era initiative, the Clean Power Plan, and a judicial precept called the “major questions doctrine,” which essentially holds that cases involving “decisions of vast economic and political significance” must be able to point to specific congressional authorization. West Virginia had argued that the Obama plan, which intended to reduce carbon pollution by pushing fossil fuel plants to shift to alternative forms of energy, did not satisfy the major questions doctrine and overstepped the EPA’s authority.

The twist was that the Clean Power Plan had never even got off the ground — West Virginia v. EPA was intended to ensure that nothing like it ever will.

“Today,” Justice Elena Kagan wrote in the dissent, “the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,’” referring to a previous Supreme Court case that had essentially come to the opposite conclusion of West Virginia v. EPA.

Limiting federal oversight beyond EPA

What makes Thursday’s ruling even more consequential, said Doug O’Malley, state director of Environment New Jersey, is that the “major questions doctrine” is not limited to defining just the EPA’s scope of power; it can be applied to many other federal agencies. The decision is in line with the ideology of the court’s six-justice conservative majority, which, in the last week, has made clear its skepticism of federal oversight.

“This decision is much more than the Clean Air Act,” O’Malley said. “Ultimately, this is about whether the court is striking a dagger in the heart of regulatory protections for hundreds of millions of Americans.”

Nevertheless, O’Malley said, the court’s ruling on Thursday could have been worse. He pointed to Justice Neil Gorsuch’s concurring decision (Chief Justice John Roberts wrote the majority opinion) as “a window into the regulatory overreach that some members of the Court envisioned.”

That window, O’Malley explained, would have included the complete dissolution of what is called Chevron deference, another judicial doctrine that is based on a 1984 Supreme Court case that holds that judges should defer to the interpretations of agencies, like the EPA, of the authority invested in them by Congress to enact regulations. Conservative members of Congress, Republican state governments and activists have long sought to overturn Chevron deference.

O’Malley called the doctrine a “bedrock” for implementing regulations that seek to tackle huge, complex issues like CO2 and other fossil fuel emissions, which do not stop at state borders.

“In many ways,” O’Malley said, “West Virginia versus EPA is a tragedy of the commons.”

Pollution from Pennsylvania, Ohio

He pointed to the State of New Jersey’s decision, in 2012, to support the EPA in a lawsuit against Martins Creek Power Plant, whose location along the Delaware River in Pennsylvania caused toxic air to waft across the water and into communities in neighboring Warren County. It has been estimated that about a third of New Jersey’s particulate pollution — like the ash produced by Martins Creek — comes from out-of-state sources.

“Our state borders are not forcefields,” O’Malley said. “The pollution from power plants in Pennsylvania and Ohio ends up in our lungs. That’s why we have a federal Clean Air Act. That’s why we have the United States: to ensure that every state has to play by the same rules.”

In its 2022 State of the Air report, released in April, the American Lung Association found that almost 9 million more people had been impacted by particle pollution compared with the previous year’s findings. The byproducts of climate change, largely wildfires, were responsible for the spike in particle pollution, according to the report. But other climate-change-driven factors, like heat and drought, are contributing to America’s worsening air quality.

The report also found that communities of color “were 61 percent more likely than white people to live in a county with a failing grade for at least one pollutant, and 3.6 times as likely to live in a county with failing grades for all three pollutants.”

This is hardly a new revelation. Communities of color, like Newark’s Ironbound and Louisiana’s St. James Parish, nicknamed “Cancer Alley” because of the high rates of the disease there, have long been disproportionately surrounded and sickened by polluting industries.

Environmental justice legislation

Such a reality is what spurred the passage, in 2020, of New Jersey’s landmark environmental justice law. The bill requires the state Department of Environmental Protection to deny permits for polluting plants in certain low-income communities of color if those facilities pose added health risks on top of already poor environmental circumstances.

Lopez-Nunez and the Ironbound Community Corporation played an integral role in getting that law passed.

“A lot of people were stunned to hear that you couldn’t take into consideration the fact that, if there’s three power plants right next to each other and you want to add a fourth, those were not a part of the [permitting] equation prior to this law being passed,” she said. “That stuns people when they realize that a lot of commonsense things are not actually law or regulation. And now, with West Virginia v. EPA, we’re weakening who’s minding the shop.”

In the 2022 American Lung Association report, Newark ranked high for both ozone and particle pollution among the country’s metropolitan areas. Within Newark, Lopez-Nunez said, the Ironbound no doubt registers the highest levels of unsafe air.

With dwindling hope that any kind of meaningful oversight of polluters will come from the federal government, and unwilling to rely solely on S-232, the Ironbound Community Corporation has joined the neighborhood with two environmental advocacy groups in a lawsuit against the EPA. The suit targets the EPA for failing to properly regulate garbage incinerators in accordance with the Clean Air Act.

“It’s exhausting, it’s really hard to hold on to faith,” Lopez-Nunez said of the effort to push companies and the government to recognize the harm that comes from fossil fuel emissions, especially on the most vulnerable populations. “I’m losing faith in my government, but I don’t lose faith in my community.”

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published this page in News and Politics 2022-07-04 03:43:46 -0700