The Supreme Court’s recent ruling that the U.S. Environmental Protection Agency does not have the power to regulate power plant emissions will seriously hamper U.S. efforts to slow climate change. So says Christine Todd Whitman, who served as EPA administrator under George W. Bush for three years, and was New Jersey’s first woman governor. Whitman says the ruling will also kill worldwide confidence in U.S. climate action—which could lessen the resolve of other big polluters, such as India and China, to cut their own emissions.
In an interview with Scientific American, Whitman called the Court’s decision “a body blow” to America and predicted that it will make regulation more cumbersome and costly. Industry lobbyists and political ideologues have repeatedly challenged EPA regulations since Republican President Richard Nixon established the agency in 1970.
Whitman says the EPA will have to find creative ways to continue its mission, and that the major push for clean energy will have to come from the states.
[An edited transcript of the interview follows.]
Conservatives on the Supreme Court say the EPA should not regulate power plants in a sweeping way because Congress hasn’t directed the agency to do that. True or false?
The EPA gets blamed for a lot of things. We put up a pollution bill at the beginning of the Bush administration that would have set the first real limits on mercury, and we couldn’t even get Congress to hold a hearing on that bill. To assume that Congress now is suddenly going to change course and listen to science, and make these critical decisions for our health, I simply don’t understand the reasoning of the Court. In fairness, the agency would far rather have Congress act on climate change than to have to address it strictly through regulation—because regulation always ends up in the courts, and it takes forever and costs a bunch of money [to litigate]. Meanwhile, the bad actors just continue to do what they are doing.
Is the Court being naive, or is it calculating that there will be no effective regulations if left up to Congress?
I think it’s the latter. I’m afraid the Court is pushing a political agenda. Rather than taking the cases that come up to them naturally, they are reaching down to lower court rulings that they can bring up that will help continue this move toward deregulation. In their rulings, they are ignoring the Supreme Court’s own precedents. This is not going to stop with the EPA. You are going to see it bleed over to the Food and Drug Administration—how we scrutinize food safety, drug safety. Energy companies, big industries, big pharma and the like are the ones pushing this agenda of the Court.
Does all of this give you déjà vu? You ended up resigning when the Bush Administration told you to water down pollution regulations.
That’s right. Our [EPA] scientists were telling me one thing, and the administration was telling me to set the standard in a different place. I kept getting numbers from them that weren’t based on the science, but were clearly coming from the utilities themselves. So I left the agency.
It’s a thankless job.
My definition of success was when you were being attacked by both sides, because then I figured I was right where I needed to be.
After the power plant ruling you tweeted: “The Supreme Court decision handed down today assigns the responsibility of deciding what’s best for human health to the Congress, which has no clue on how to analyze scientific data.” Are we losing the ability to use science to inform policy in the U.S.?
Unfortunately we seem to be, yes.
Between 2016 and 2020, the EPA lost 672 scientific experts. Has the Biden administration been able to attract back the talent the EPA needs to function?
Not entirely. The problem is that far too many people in these agencies require Senate confirmation. They really shouldn’t, because they are not making the kinds of decisions that require that kind of oversight. There are a number of positions that have still not been filled because they haven’t gotten through the hearing process.
If Congress is not going to act, and the administration is being stripped of its regulatory authority, who is left to lead the way?
The future is going to be in the states. They’re going to have to be more protective now, because Congress just isn’t going to do it. Look at New York state: Just yesterday the governor [Kathy Hochul] signed legislation that pledged the state to reduce carbon emissions by something like 90 percent. The states are going to be the ones to take the actions.
Do you worry about the attorneys general in some red states being emboldened by the Court ruling to challenge other EPA regulations?
Absolutely. At one point, one out of every four candidates for state attorney general was an election denier. There’s a scary number of them running for secretary of state, state attorney general and governor. And if you elect a bunch of people who are very conservative and want to set things back, they’re going to be able to do it.
Michael Regan, President Joe Biden’s EPA administrator, says the Supreme Court ruling is “disappointing” but “it doesn’t take us out of the game” and “we are going to use all the tools in our toolbox” to fight carbon pollution. What are some of those tools?
The ruling will make them get at it piecemeal, with smaller pinpoint regulations, not what they could have done with a more encompassing regulatory approach.
What about legal means EPA can use to continue fulfilling its mandate?
I’m not a lawyer; I’d leave that up to the legal department. Believe me, they will be looking for every which way they can use to address this. The current White House has correctly made climate change the responsibility of every agency—housing, for example, changing building requirements as we have in N.J. and N.Y. to make buildings more energy efficient, to make appliances more energy efficient. Those are the kinds of things that are going to have to be done.
Is the Court ruling going to have a chilling effect on the EPA’s willingness to even propose ambitious new regulations, knowing that they are likely to be shot down?
It might have a chilling effect on recruiting new younger scientists to join the agency. But the people who are already there are committed professionals, and they are going to continue to do everything they can to move the mission forward.
Under the Paris Agreement, the U.S. committed to slashing emissions by half by 2030. How likely are we to be able to fulfill that pledge now?
Highly unlikely. And the rest of the world is beginning to wash their hands of us, which is really troubling because it means other big polluters like India and China are going to say, “Well, if the United States is not going to do it, we won’t do it either.” This decision sets everybody back. Other nations don’t have confidence in us anymore. For us to have any kind of impact when we go to these COP [global climate change] meetings is getting more and more problematic.
Opponents of regulation sometimes argue that it is bad for the economy. But doesn’t industry look to government to establish clear policies that will give it the confidence to make long-term investments?
Absolutely. That’s what is so frustrating about the Court decision. Industry doesn’t want to have to meet the regulatory standards of 50 different states and three territories. If they have one set of regulations here, another set there—it’s a nightmare. It’s very costly, which means products cost more. It’s mind-boggling. You have a Supreme Court that is said to be conservative; you’d think they want to save people money, not to mention save lives! It is going to take us several years to fully appreciate how deep this impact goes, how far-reaching it is. It’s a body blow in so many ways.
So where does the EPA go from here?
The EPA will continue to do what it can. And so will the good actors in industry. We can’t move away from our commitment, our responsibility. But we’re going to have to become more creative about it going forward.
