The primacy of public health: Statutory mandate versus economic calculation in air quality regulation

“ Because it realized this, Congress, the Administrator maintains, directed him to err on the side of caution in making these judgments. First, Congress made it abundantly clear that considerations of economic or technological feasibility are to be subordinated to the goal of protecting the public health by prohibiting any consideration of such factors. Second, it specified that the air quality standards must also protect individuals who are particularly sensitive to the effects of pollution. ”

“ They reflect the ability of one entity, e.g., a company, to use water or air as a free resource for waste disposal, while others pay the cost in contaminated air or water. If there were a way to make the price structure shoulder these external costs - taxing the firm for the amount of discharge, for instance - then the price for the goods and services produced would reflect these costs. Failing this, goods whose production spawn pollution are greatly underpriced because the purchaser does not pay for pollution abatement that would prevent environment damage. ”

“ The fossil fuel emissions of principal concern in terms of urban pollution, whether from stationary or mobil sources, include sulphur dioxide, nitrogen oxides, carbon monoxide, various volatile organic compounds, fly ash, and other suspended particles. They can injure human health and the environment, bringing increased respiratory complaints, some potentially fatal. But these pollutants can be contained so as to protect human health and the environment and all governments should take steps to achieve acceptable levels of air quality. ”

“ Employers’ Influence on the Health of Workpeople by the Ventilation of Places of Work, and the Prevention of Noxious Fumes, Dust, &c. In some of the “dusty trades,” the excessive amount of premature mortality is so great as to justify interference, defensively, as against the charges which, from the neglect of sanitary measures, fall neither upon the employer nor upon the consumer, who directly benefit by the produce of the industry, but upon ratepayers, to whom the manufactory itself may be a nuisance. ”

“ The provision under which EPA made its decision, section 202 (a) (1) of the Clean Air Act, is crystalline: EPA is to decide whether to regulate an air pollutant emitted by motor vehicles on the basis of its judgment whether public health or welfare may reasonably be anticipated to be endangered by the pollution. Section 202 (a) (1) says not a word about technological judgments, international treaty negotiations, private-public partnerships, or any other of the myriad factors EPA cited in deciding not to regulate here. ”

“ However, EPA's analysis of its statutory authority did not turn on the term “air pollutant” standing alone. Instead, EPA's conclusion about the limits of its CAA authority flowed from a broader analysis of the CAA and other climate change-specific congressional action. Based on that analysis, EPA concluded that its regulatory authority did not extend to controlling greenhouse gas emissions for climate change purposes, and thus that greenhouse gases could not be considered “air pollutants” within the meaning of the Act for regulatory purposes. ”

“ This court has previously noted that some uncertainty about the health effects of air pollution is inevitable. [48] And we pointed out that " (a) waiting certainty will often allow for only reactive, not preventive (regulatory action) ." Ethyl Corp. v. EPA, supra, 541 F.2d at 25. Congress apparently shares this view; it specifically directed the Administrator to allow an adequate margin of safety to protect against effects which have not yet been uncovered by research and effects whose medical significance is a matter of disagreement. ”

“ EPA, supra note 29, 541 F.2d at 24-25, we pointed out: Questions involving the environment are particularly prone to uncertainty. Technological man has altered his world in ways never before experienced or anticipated. The health effects of such alterations are often unknown, sometimes unknowable. While a concerned Congress has passed legislation providing for protection of the public health against gross environmental modifications, the regulators entrusted with the enforcement of such laws have not thereby been endowed with a prescience that removes all doubt from their decisionmaking. ”

“ Second, EPA concluded that regulation under section 202 (a) (1) was not warranted because it would “result in an inefficient, piecemeal approach to addressing the climate change issue,” since motor vehicles are only one of many sources of air pollutants associated with climate change. (App. 85-86.)
Third, EPA asserted that “ [u] nilateral EPA regulation” in this area could “weaken U.S. efforts to persuade key developing countries to reduce the [greenhouse gas] intensity of their economies.” ”

“ A third of us breathe air that endangers our health. And in too many communities, the water is not safe to drink. We still have much to do.
Yet Congress has voted to cut environmental enforcement by 25 percent. That means more toxic chemicals in our water, more smog in our air, more pesticides in our food. Lobbyists for polluters have been allowed to write their own loopholes into bills to weaken laws that protect the health and safety of our children. Some say that the taxpayer should pick up the tab for toxic waste and let polluters who can afford to fix it off the hook. ”

“ Under the latter he is given no power to exempt on the ground that compliance is impracticable. He cannot weigh business convenience against protection of the public health. Only where he finds that labeling is not necessary to that protection is he authorized to create an exemption for drugs and devices. Health security is not only the first, it is the exclusive, criterion. ”

“ But if it be within the power of a legislature to adopt such means for the protection of the lives of its citizens, it is difficult to see why precautions may not also be adopted for the protection of their health and morals. It is as much for the interest of the State that the public health should be preserved as that life should be made secure. ”

“ Since CO2 is the most abundant anthropogenic greenhouse gas, EPA appropriately found that “an effort to impose controls on U.S. [greenhouse gas] emissions would have far greater economic and political implications than FDA's attempt to regulate tobacco.” ”

“ Legislative efforts to provide EPA with express authority to set CO2 and other greenhouse gas emission standards have all failed. Congress has instead passed statutes specifically calling for global climate change research and policy development, but not regulation. For these reasons, EPA reasonably concluded that nothing in the Act reflects any kind of express or implicit congressional intent for EPA to regulate CO2 and other greenhouse gas emissions to address global climate change issues. ”

“ For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse [p524] gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease. ”

“ It is a great pity that we Americans have taken so long to learn that laws do not enforce themselves, that even good motives and good intentions in the best of officials do not insure good deeds. Thousands of lives are being lost every year, millions of days taken from industry and wasted by unnecessary sickness, millions of dollars spent on curing disease, the working life of the nation shortened, the hours of enjoyment curtailed, because we have not seen the great gap between health laws and health-law enforcement. ”

“ Besides the prejudicial effects on the health of the population by the deterioration of the quality of the air that is breathed, a serious effect is created by its operation as an impediment to the formation and maintenance of habits of personal and household cleanliness amongst the working classes. Even upon the middle and higher classes the nuisance of an excess of smoke, occasioned by ignorance and culpable carelessness, operates as a tax increasing the wear and tear of linen and the expense of washing, to all who live within the range of the mismanaged chimneys. ”

“ Of that which in these instances appear to be the main cause of premature disease and death, defective ventilation, it is to be remarked that until very lately little had been observed or understood, even by professional men or men of science; and that it is only when the public health is made a matter of public care by a responsible public agency that, what is understood can be expected to be generally and effectually applied for the public protection. Vitiated air not being seen, and air which is pure in winter being cold, the cold is felt and the air is excluded by the workmen. ”

“ Thousands in this metropolis, through the neglect of the laws of health, live in the twilight of disease, rather than in the noon-day brightness of health.
I have endeavoured to show that fresh air is a necessary of life just as much as food. I have indicated its importance in relation to health and how imperatively necessary it was in sickness to aid the body to overcome disease. If overcrowding in small dwellings and its consequent ill effects upon health, morality, and industry be a necessary social evil, it is evidently our duty to lessen that evil, if we cannot altogether remove it. ”

“ A city government that spends taxes inefficiently can produce more sickness, wretchedness, incapacity in one year than pamphlets on health can offset in a generation. Failure to enforce health laws is a more serious menace to health and morals than drunkenness or tobacco cancer. Unclean streets, unclean dairies, unclean, overcrowded tenements can do more harm than alcohol and tobacco because they can breed an appetite that craves stimulants and drugs. ”

“ What the public welfare requires is, as is now admitted, that these sick persons should be treated with a single eye to arresting the course of their disease, and restoring them as soon as possible to physical health. Moreover, as sickness is plainly, to an undefined extent, the result of bad environment—of overcrowding, insanitation, unwholesome food, polluted water, or injurious conditions of employment—it is important that it should be in the hands of an authority officially cognisant of this environment, and empowered to alter that which is producing the sickness. ”

“ This legislation will constitute the most significant step America has ever taken — has ever taken — to cut power plant emissions that contribute to urban smog, acid rain and numerous health problems for our citizens.
Clean Skies legislation will not only protect our environment, it will prolong the lives of thousands of Americans with asthma and other respiratory illnesses, as well as with those with heart disease. ”

“ Because buildings and monuments cannot adapt to changes in the environment, as plants and animals can, historic structures may be particularly affected by acid precipitation. Scientists are studying effective control technologies to limit the emissions from power plants and automobiles that cause acid rain. The impact and usefulness of regulations that would require limits on air pollution are also being studied. Finally, scientists are examining the processes of deterioration to find effective ways to protect and repair our historic buildings and monuments. ”

“ This 'greenhouse effect' may by early next century have increased average global temperatures enough to shift agricultural production areas, raise sea levels to flood coastal cities, and disrupt national economies. Other industrial gases threaten to deplete the planet's protective ozone shield to such an extent that the number of human and animal cancers would rise sharply and the oceans' food chain would be disrupted, industry and agriculture put toxic substances into the human food chain and into underground water tables beyond reach of cleansing. ”

“ EPA nevertheless maintains that there is something special about the nature of the harm that these substances cause that negates the agency’s jurisdiction over them. (App. 71-73.) But in fact they cause the kinds of harm that are expressly set forth in section 302 (h) , which states that effects on “welfare” include effects on “climate.” By including effects on “climate” within the “welfare” effects that the agency is charged with preventing, Congress has expressly conferred authority to regulate air pollutants that adversely affect “climate.” ”

“ People accustom themselves to impure air so that they apparently feel no bad effects, but this is always at the expense of health. The senses may be blunted, but the evil results always follow. To keep a house sealed up as tightly as possible in order to keep it warm saves fuel bills, but the resultant bodily deterioration and disease cause enough discomfort and result in doctor bills which more than offset this saving. It is poor economy. ”

“ Most of the rules of hygiene cost nothing to observe. But even when hygiene is costly at first, the cost is usually repaid in the end many times over. To ventilate a house in winter always costs a certain additional expenditure for coal, but it is better to pay the coal bill than the doctor’s bills. To sleep out-of-doors costs some extra blankets, bedding, clothing, and roll curtains, but these not only save the cost of heating an indoor sleeping-room, but save also the cost of ill-health. There is no better economy than to keep one’s working-power. ”

“ Health administration cannot rise far above the hygienic standards of those who provide the means for administering sanitary law. The tax-paying public must believe in the economy, utility, and necessity of efficient health administration. ”

“ It is, perhaps, true that it may be done in the latter manner at less actual cost to the ratepayers, but all public work should be done in the best manner possible, irrespective of cost, thoroughly, but without extravagance, and the result of such work, especially where it affects the cleanliness and the appearance of a town, soon fully repays any moderate extra cost that may thus have been incurred, irrespective of the enormous benefit that is conferred upon any community by the reduction of disease and the death-rate by a proper attention to such necessary sanitary work. ”

“ And I do think we’re seeing right now that not doing that, not making those investments has a big cost as well. You can see the implications of the disinvestment in public health in our communities, in all of the crises that our country is currently facing. ”

“ It is estimated that sickness and death cost the United States $3,000,000,000 annually, of which at least a third, probably one-half, is preventable. Is it not well worth while, then, from a money standpoint alone, to use every effort to conserve our national health? Conservation of health and life, going hand in hand with conservation of national resources, will give us not only a better America, but better, stronger, happier, more enlightened Americans. What a new world would be opened to us if we could have a nation with no sickness or suffering! ”

“ If we count the value of each life lost at only $1700 and reckon the average earning lost by illness at $700 a year for grown men, we find that the economic gain from mitigation of preventable disease in the United States would exceed $1,500,000,000 a year. This gain can be had through medical investigation and practice, school and factory hygiene, restriction of labor by women and children, the education of the people in both public and private hygiene, and through improving the efficiency of our health service, municipal, state, and national. ”

“ Chronic diseases of the lung afflict well over 18 million Americans, cause more than 200,000 deaths annually, and cost the Nation more than $45 billion each year in lost wages, productivity and direct costs of medical care. ”

“ That city alone sacrifices twenty-eight thousand lives annually to diseases that are officially called preventable. The yearly burial cost of these victims of professional and community neglect is more than a million dollars. When to the doctor bills, wages lost, burial cost of those who die are added the total doctor bills, wages lost, and other expenses of the sick who do not die, we find that one city loses in dollars and cents more every year from communicable diseases than is spent by the whole United States for hospitals and boards of health. ”

“ Risk AssessmentRisk Assessment By late-century, Federal health care spending could increase by billions of dollars each year, as tens of thousands to hundreds of thousands of Americans suffer from illnesses due to the effects of climate change on air quality—including non-fatal heart attacks, emergency room visits for asthma attacks, and hospital admissions for respiratory and cardiovascular conditions. ”

“ Now, I ask this Congress to resist the tobacco lobby, to reaffirm the FDA's authority to protect our children from tobacco and to hold tobacco companies accountable, while protecting tobacco farmers.
Smoking has cost taxpayers hundreds of billions of dollars under Medicare and other programs. You know, the states have been right about this. Taxpayers shouldn't pay for the cost of lung cancer, emphysema, and other smoking-related illnesses, the tobacco companies should. ”

“ Studies often overlook key dimensions of climate change impacts that would speak to the specific risks and tradeoffs facing decision-makers, such as those in the Federal Government, as they evaluate policy options and long-term investments and divestments. For example, while premature mortality will likely account for the overwhelming majority of economic losses from climate impacts related to health, the non-fatal and chronic health effects will impose the greatest burden for public and private health insurers. ”

“ For example, Americans may migrate to areas of the country with cleaner air, install air conditioning in greater numbers, or make greater efforts to stay indoors when air quality is poor.
The model also does not capture the effects of climate-related increases in severe wildfire on PM2.5 and ozone formation, morbidity outcomes like acute bronchitis that do not result in hospitalization but may still lead to significant health care costs, the effects of climate-related changes in airborne allergens on allergic disease, or changes in health care costs associated with premature mortality. ”