The freedom to pollute
The Supreme Court throws a wrench into climate action.
Much of American ideology is rooted in freedom: The freedom to do or say what you want, when you want; the freedom to innovate wildly on a scale never seen before.
Such freedom has paved the way for some pretty cool engineering marvels — like cars and railroads, telephones and televisions — that flourished in the laissez faire, capitalistic economy of risk taking and innovation of the 19th and 20th centuries.
But obviously, such freedom has also come with tradeoffs. This was highlighted by the recent Supreme Court decision that overturned the Chevron doctrine.
In the decision, the Supreme Court ruled that courts now have more discretion to overturn regulations enacted by federal agencies when it comes to regulating industry.
Practically, this could hamper the federal government’s ability to curb power plant emissions, reduce climate-warming pollution from cars and trucks, and force public companies to disclose climate risks.
Put another way, the Supreme Court's decision, by making it easier for polluters to challenge and for courts to strike down regulations, prioritizes the freedom of industry to pollute over the freedom of citizens to be free from pollution.
Specifically, the decision — called Loper Bright Enterprises v. Raimondo — overturned a doctrine called Chevron deference, named after a decades-old precedent that gave federal agencies leeway when interpreting ambiguous laws. That leeway will now shift from agencies to courts:
“Today’s ruling sidelines the role of agency expertise, and instead shifts power to judges who do not have the expertise of agency staff who live and breathe the science, financial principles, and safety concerns that federal agencies specialize in,” Kym Meyer, litigation director for the Southern Environmental Law Center, said in a statement.
Deferring to agencies puts professional scientists and specialists in charge of regulating industry. In doing so, it grants the right actors authority in striking the right balance between unlimited freedom and limited freedom. But this decision throws off that balance.
Maybe it’s because I’ve read too much Jonathan Franzen, but I keep thinking about a line from his appropriately named novel Freedom: “The one thing nobody can take away from you is the freedom to fuck up your life whatever way you want to.”
The key phrase being your life: The unlimited freedom for some cannot, or at least should not, curtail the freedom of others. But by overturning the Chevron doctrine, the Supreme Court opens the door to the fact that anyone (in this case polluting industries) can freely fuck up the lives of others. Or at least do so with far less government oversight.
That American ideology is rooted in this freedom is not a bad thing. It has led to some good progress, including the advancement of certain aspects of democracy and human rights over the country’s short 250-year history.
But freedom is complicated, and American notions of freedom to rests on a bedrock of regulation that includes freedom from. It is this bedrock that gives us freedom from polluted drinking water, freedom from eating dangerous food, freedom from breathing in dirty air.
Freedom shouldn’t mean the unchecked ability to do anything. And for something like climate action to succeed, we need federal agencies to be able to enact solutions that give freedom for all, not just some.
As we examine the role of government in climate action, and seek to reflect that preference through our votes in November, we should remember the role of freedom in our democracy — and how there is some long-standing and good regulation that is now under threat.