Another disheartening Supreme Court decision: West Virginia v. EPA

PGE-Hunters-Point-Power-Plant-prior-to-its-deconstruction-by-Chris-Carlsson-2007, Another disheartening Supreme Court decision: West Virginia v. EPA, Local News & Views News & Views
The Hunters Point PG&E power plant in 2007, prior to its deconstruction. – Photo: Chris Carlsson

Including public comment by Hunters Point Community Biomonitoring

by Ahimsa Porter Sumchai, MD, PD, Health and Environmental Science Editor 

“At this moment, when the impacts of the climate crisis are becoming ever more disruptive, costing billions of dollars every year from floods, wildfires, droughts and sea level rise, and jeopardizing the safety of millions of Americans, the court’s ruling is disheartening,” stated Michael Regan, EPA administrator, upon the latest Supreme Court ruling.

On Thursday, June 30, 2022, the Supreme Court of the United States issued a devastating decision in West Virginia et al v. Environmental Protection Agency et al. An excerpt from the syllabus of the decision reads:

“In 2015, the Environmental Protection Agency (EPA) promulgated the Clean Power Plan rule, which addressed carbon dioxide emissions from coal and natural gas fired power plants. For authority, the Agency cited Section 111 of the Clean Air Act … known as the New Source Performance Standards program, also authorizes regulation of certain pollutants from existing sources. Under that provision, although the States set the actual enforceable rules governing existing sources, EPA determines the emissions limit with which they will have to comply.

“The Agency derives that limit by determining the best system of emission reduction … BSER. In the Clean Power Plan, EPA determined that the BSER for existing coal and natural gas plants included three types of measures, which the Agency calls ‘building blocks.’ The first building block was ‘heat rate improvements’ at coal-fired plants — practices such plants could undertake to burn coal more cleanly … This Court stayed the Clean Power Plan in 2016, preventing the rule from taking effect.”

Chief Justice Roberts delivered the opinion of the Court in the 89 page decision. In excerpt it reads:

“The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a ‘standard of performance’ for the emission of certain pollutants into the air. Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. 

In a 6-3 opinion divided along political and ideological lines, the nation’s high court ruled to limit the EPA’s ability to strictly regulate emissions from power plants.

“In 2015, however, EPA issued a new rule concluding that the ‘best system of emission reduction’ for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity or subsidize increased generation by natural gas, wind or solar sources. The question before us is whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.”

In a 6-3 opinion divided along political and ideological lines, the nation’s high court ruled to limit the EPA’s ability to strictly regulate emissions from power plants. The ruling addresses EPA’s authority granted by former President Obama’s Clean Power Plan, to enforce mandates for power plant emissions. The plan was never implemented, held back by legal challenges.

The Supreme Court decision specifically addresses capping carbon dioxide emissions and opines “it is not plausible that Congress gave EPA authority to adopt on its own such a regulatory scheme and that a “decision of such magnitude and consequence resides with Congress.”

The court opinion signals a devastating setback in the fight against climate change and air pollution disproportionately impacting heavily industrialized shoreline communities of color from Cancer Alley in Louisiana to San Francisco’s Bayview Hunters Point. Greenhouse gasses, like carbon dioxide, trap heat in the atmosphere and increase global temperatures.

President Biden issued a Presidential Action on Jan. 20, 2021, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. Biden called the Supreme Court decision a “devastating decision” that “risks damaging our nation’s ability to keep our air clean and combat climate change.”

Biomonitoring detects pollution in people. The Hunters Point Biomonitoring Program launched in January of 2019, offering residents and workers living within the one mile buffer zone of a system of three federal Superfund sites located in heavily industrialized and polluted southeast San Francisco access to low cost, reliable urinary toxic exposure screenings capable of detecting up to 35 toxicants including radioactive and carcinogenic heavy metals commonly detected in fugitive dust emissions and toxic air contaminants.

The EPA EJScreen identifies Hunters Point as being in the 95th to 100th percentile for particulate 2.5, diesel particulates and Air Toxics Cancer Risk.

Air-Toxics-Cancer-Risk-Bayview-Hunters-Point-EPA-EJScreen-map-2017, Another disheartening Supreme Court decision: West Virginia v. EPA, Local News & Views News & Views

The people of Bayview Hunters Point courageously fought to close and demolish the PG&E Power Plant by forming a powerful coalition that surged over decades led by Marie Harrison and the Hunters Point Mothers and Fathers Committee to include medical researchers, environmental activists, clergy, elected officials, a brigade of environmental law attorneys and government regulators.

Residents sounded the alarm that power plant emissions formed black soot on the windows and doorways of their homes and triggered asthma attacks, headaches and nosebleeds in their children. Greenaction and the Hunters Point Mothers and Fathers Committee led the successful fight that finally closed the PG&E Hunters Point power plant in 2006.

Demolition-of-the-PGE-power-plant-by-Chris-Carlsson-0309, Another disheartening Supreme Court decision: West Virginia v. EPA, Local News & Views News & Views
The dismantling of the PG&E power plant allowed a clear view north this March 2009 across India Basin north towards Heron’s Head Park, with downtown in distance too. – Photo: Chris Carlsson

Two recent studies assessed the outcomes caused by the closure of the PG&E power plant that operated within feet of Hunters View and India Basin residents from 1929 to 2006. A study published in the American Journal of Epidemiology in May found that after eight coal or oil-fired power plants closed between 2001 and 2011 in California, including the Hunters Point PG&E facility, fewer babies were born preterm in the surrounding community. In a study published in Environmental Health, the same researchers found that retiring those eight power plants resulted in an uptick in fertility rates — the number of live births per 1,000 women.

8-California-coal-and-oil-fired-plants-closed-map-from-American-Journal-of-Epidemiology, Another disheartening Supreme Court decision: West Virginia v. EPA, Local News & Views News & Views
Eight California coal and oil-fired power plants closed between 2001 and 2011. UC Berkeley postdoctoral scholar Joan Casey led research that first identified babies born preterm – before 37 weeks of pregnancy – to be at increased risk of cerebral palsy, asthma and death. – Photo: American Journal of Epidemiology

According to the Environmental Defense Fund, power plants are one of the single largest contributors to national and global air pollution and climate change and, according to the EPA, account for 24% of greenhouse gas emissions in the U.S. from the burning of fossil fuels. EDF general counsel Vickie Patton called the ruling that sided with coal-mining companies and Republican led states “judicial overreach.” 

The EPA’s authority to involve all stakeholders in developing pollution standards was supported by power companies as well as the American Medical Association and the American Academy of Pediatrics.

The United Nations warned for decades that failing to reduce greenhouse gas emissions will result in extreme unprecedented adverse impacts around the world including droughts, wildfires, storm damage and threats to human health, food production, urban infrastructure and the global economy.

The UN concluded its 76th session approving 16 resolutions and two decisions on protecting global climate and expressing profound alarm that greenhouse gas emissions continue to rise globally. In “protection of global climate for present and future generations of humankind,” the UN General Assembly emphasized mitigation and adaptation to climate change represents an immediate global priority

“The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy. I cannot think of many things more frightening.” Read the Supreme Court’s EPA Decision, Elena Kagan’s Dissent.

The Hunters Point Biomonitoring Foundation believes the ultimate power and courage of environmental activism and citizen science will prevail in overturning a decision described in a dissenting opinion by Justice Elena Kagan as “frightening.”

Grand-opening-Hunters-Point-Biomonitoring-Program-Medical-Screening-Clinic-1219, Another disheartening Supreme Court decision: West Virginia v. EPA, Local News & Views News & Views
The best and the brightest: The grand opening of the Hunters Point Biomonitoring Program Medical Screening Clinic in December 2019. The program is funded by the David & Lucille Packard Foundation.

The Hunters Point Biomonitoring Foundation stands firm in the conviction that the acceptance and application of human biomonitoring (HBM) will advance environmental public health and play a decisive role in governmental policy to calm the rising tide of global sea levels, disperse the dark clouds of toxic airborne emissions and mitigate their adverse health effects.

The most overlooked example of the power of human biomonitoring is documented in declining blood lead levels that occurred from 1970 to 1990 following the elimination of lead in gasoline. Lead is a naturally occurring metal used in the production of fuels and paint. In 1971, Congress banned the use of lead based paint in residential projects and effective Jan. 1, 1996, leaded gasoline was banned by the Clean Air Act for use in new vehicles as a direct effect of human biomonitoring. The United Nations estimates the global phaseout of the toxic fuel saved $2.44 trillion per year due to health improvements and prevented over 1.2 million premature deaths.

The Hunters Point Biomonitoring Foundation, Inc. stands proud in our belief in the words of MLK: “That unarmed truth and unconditional love will have the final word!”  

SF Bay View Health and Environmental Science Editor Ahimsa Porter Sumchai, MD, PD, founder and principal investigator for the Hunters Point Community Biomonitoring Program, founding chair of the Hunters Point Naval Shipyard Restoration Advisory Board’s Radiological Subcommittee and contributor to the 2005 Draft Historical Radiological Assessment, can be reached at Dr. Sumchai is medical director of Golden State MD Health & Wellness, a UCSF and Stanford trained author and researcher, and a member of the UCSF Medical Alumni Association Board of Directors.