Is US Environmental Decision-Making Morally Bankrupt?

By Shawn Collins of The Collins Law Firm, P.C. and Norman B. Berger of Varga, Berger, Ledsky, Hayes & Casey

A comparison of Pope Francis' recent encyclical on the environment, Laudato Si', with our Supreme Court's recent decision on power plant emissions raises troubling questions regarding the moral core of our environmental decision-making.

The Pope wrote passionately about how it is the poor who bear the brunt of power plants recklessly spewing toxic chemicals into the air:¹

• "Exposure to atmospheric pollutants produces a broad spectrum of health hazards, especially for the poor, and causes millions of premature deaths. People take sick, for example, from breathing high levels of smoke from fuels used in cooking or heating."²
• There is an "intimate relationship between the poor and the fragility of the planet..."³

And he spoke of how powerful corporate interests claim for themselves, and then abuse, the earth's natural resources, all the while denying the basic humanity of most of the earth's people:

• "When nature is viewed solely as a source of profit and gain, this has serious consequences for society. This vision of 'might is right' has engendered immense inequality, injustice and acts of violence against the majority of humanity, since resources end up in the hands of the first comer or the most powerful: the winner takes all."⁴
• As a result, "[t]he earth, our home, is beginning to look more and more like an immense pile of filth."⁵
• This behavior refuses to recognize "the immense dignity of each person, 'who is not just something, but someone..."⁶

With words as beautiful as they are chilling, the Pope exhorted us to make environmental decisions by valuing foremost the lives and health-and fundamental human dignity-of the poor, who are paying the price by the millions for environmental decision-making that considers only, or mostly, the bottom lines of those companies who are doing the polluting.

But then along comes the majority of justices of the US Supreme Court in the recent case of Michigan vs. EPA, ruling as if they were trapped in another century governed by Charles Dickens-style industrialists. I blogged about this decision in Life-Saving Regulation of Toxic Power Plant Emissions Declared Invalid By US Supreme Court.

In that decision, the majority invalidated an 18-years-in-the-making EPA regulation which would have:⁷

• Sharply reduced the toxic emissions from coal burning power plants;
• Saved 11,000 lives every year;
• Reduced illness from power plant emissions by the tens of thousands every year; and
• Producing benefits greater than costs by up to $80 million every year.

(And this is to say nothing of the severe climate change caused by power plant and other fossil fuel emissions which, alone, are threatening the lives and security of millions around the world.)⁷

The lives and health spared by EPA's regulation would have been mostly those of the poor-including poor children-who live in precisely the kind of financially disadvantaged neighborhoods where homes and yards are regularly blanketed with toxic soot.

In its reasoning, the majority barely even noticed the fact that EPA's regulation would have saved lives and health, or that, in the 10+ years it worked to find the most cost-effective regulation, EPA considered numerous times the cost of the power plants' compliance with the regulation. Instead, the majority fastened its gaze only on the fact that, in the earliest stage of the process, EPA did not consider the cost. In other words, according to the majority, EPA's consideration of compliance costs at stages 2-10 of its process was irrelevant; but its failure to consider cost of compliance at stage 1-when there was not even a regulation on the table whose costs could be calculated-was fatal.

What especially raises the troubling moral questions in the majority's opinion is the term it used (and EPA used, it should be noted) to refer to the lives and health that would have been spared by the regulation:

"Ancillary benefits"

Have we really arrived as a society at the place where the spokespeople for our most powerful institutions now casually refer to not killing and injuring our own citizens as merely "ancillary" to corporate balance sheets?

What do we say to the mother raising children in a poor community where the air in her children's bedrooms, schools and playgrounds is heavy with chemicals from the power plant's smokestack across town?

What do we tell her when she asks: Why are the most powerful in the country referring to the lives of my children as "ancillary? Why, after EPA reported to Congress in 1997 that power plant emissions would harm my children for life, did it take 18 years to get the regulation through the court system? Where is the urgency that honors the lives and health of the people in my family and of my neighbors?

The truthful answers to these questions are ugly. But the beginning of our finding better, moral answers may be found, once again, in the writing of Pope Francis, who said:

"...we have to realize that a true ecological approach always becomes a social approach; it must integrate questions of justice in debates on the environment, so as to hear both the cry of the earth, and the cry of the poor."⁸

I am not suggesting that our Supreme Court begin taking direction from a religious leader. Our history and Constitution tell us that we don't do that here. But just because Pope Francis is a religious leader does not mean that he is wrong, or that his voice cannot be the catalyst for showing us that we have fallen so far short of who we really should be.

And it should not take religious guidance for us to understand that our willingness to hear the "cry of the earth and the cry of the poor" occupies much higher moral ground than our insistence on hearing the cries of those who claim our resources as their own, profit from their use, and leave our planet and people badly damaged in their wake.

1. Pope Francis - "Laudato Si'" - Papal Encyclical (June 18, 2015)
2. Pope Francis - "Laudato Si'" - Papal Encyclical at Par. 20 (June 18, 2015)
3. Pope Francis - "Laudato Si'" - Papal Encyclical at Par. 16 (June 18, 2015)
4. Pope Francis - "Laudato Si'" - Papal Encyclical at Par. 82 (June 18, 2015)
5. Pope Francis - "Laudato Si'" - Papal Encyclical at Par. 21 (June 18, 2015)
6. Pope Francis - "Laudato Si'" - Papal Encyclical at Par. 65 (June 18, 2015)
7. Pollution Law Watch - "Life-Saving Regulation of Toxic Power Plant Emissions Declared Invalid By US Supreme Court" (July 8, 2015)
8. Pope Francis - "Laudato Si'" - Papal Encyclical at Par. 49 (June 18, 2015)