I ran across this coverage of Justice Alito keynote speech at the Claremont Institute’s 2017 annual dinner in Slate by Mark Joseph Stern, and was appalled by both Alito’s off-the-cuff definition of pollution and the EPA‘s. First, Stern’s report on Alito:
The second was Massachusetts v. EPA. In that case, the Supreme Court found that carbon dioxide is a “pollutant” within the scope of the Clean Air Act, allowing the EPA to regulate it. Alito dissented from the 5–4 decision. And in his speech on Saturday, he summarized his frustration with the majority opinion:
Now, what is a pollutant? A pollutant is a subject that is harmful to human beings or to animals or to plants. Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting. When Congress authorized the regulation of pollutants, what it had in mind were substances like sulfur dioxide, or particulate matter—basically, soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gases.
Alito’s comments here are straight out of the climate change denialist playbook—and were rejected in Massachusetts v. EPA, for good reason.
Alito’s definition of pollutant brings tears to my eyes. Let’s go way back to the beginning – not the definition of pollution, but before that: The purpose of the EPA, which I’m going to simply take literally as the protection of the environment. But even before we can really define the EPA, we need to understand that protection is a polymorphic word, by which I mean its meaning is dependent on its context or viewpoint. A beaver has a different use of the environment than we might. The solar system is probably unaffected, on the whole, by our environmental status.
But humans, ah, yes. We human wrangle a lot about the value of the environment, but undeniably our well-being is currently dependent on the health of the environment. Now, parts of the environment are malignant towards us: some viruses and bacterial are harmful, and arsenic in well water causes illness and death. Those specific pathogens certainly fit nicely into Alito’s definition. But there’s more.
I think it goes without saying that the atmosphere is part of the EPA‘s remit, and thus we should consider it. Alito may want to limit it to this ill-defined pollution, but it’s not. We’re talking environment here, and so let’s take this a bit further into precision land – when we talk about atmosphere and protection from a human viewpoint, we’re really talking about an optimally balanced mixture of gases. This assertion is easily defended by pushing Alito into a hyperbaric chamber and then reversing its purpose by removing the oxygen from the chamber and replacing it with carbon dioxide. About the time he’s collapsing from oxygen deprivation, as are most other oxygen consuming creatures we may have put in there as company for Alito, he should have become aware that there’s more to environmental protection than simply removing quasi-pollutants. His definition, informal as it might be, does not admit to limitations, to the bell curve we often see when plotting survivability against existence or consumption. One more illuminatory definition, if the reader doesn’t mind? Water’s a good thing, right? My doctors are always telling me to drink more water. But there’s a limit. You can die of too much water. It’s called water intoxication. Too much, too little, you die before your time. But within a certain range, water intake is good for you. This applies to many substances that are good for you.
Because we’re talking about the Environmental Protection (for the sake of humans) Agency, I think it’s apparent that the EPA isn’t limited to the existence of unusual substances in the atmosphere – it must be concerned with the dangers of mixtures of gases which are not conducive to the efficient functioning of the human organism as well as the other organisms which, in part, make up the environment. Without those organisms, we, too, would perish and enter the category of extinction. So, to finish up the last loose end here, I am not advocating that we ask if there is so much carbon dioxide that we’re about to pass out, but to also recognize that the heating of the atmosphere brought on by carbon dioxide (and other gases, the proportion fo which in our atmosphere is growing out of historical values) is also a grave danger to us, and thus is an environmental danger.
Now we come to the the Clean Air Act, as well as a SCOTUS decision, as also reported by Mr. Stern:
The Clean Air Act defines “air pollutant” as “any air pollution agent or combination of such agents, including any physical [or] chemical … substance or matter which is emitted into or otherwise enters the ambient air” and “may reasonably be anticipated to endanger public health or welfare.” In its decision, the Supreme Court correctly recognized that carbon is a “chemical substance or matter” that is “emitted into” the air and “endanger[s] public health” by contributing to rising global temperatures. There is no textual support for Alito’s assertion that the law was meant to be limited to “soot or smoke.”
But it’s still terribly unsatisfactory. Alito’s complaint may be based more on the unsatisfactory phrasing of the Clean Air Act than on any particular ideological position (as Stern suggests). I would suggest ridding us of the exactly wrong use of “air pollutant” and replacing it with “ascertaining and defending an optimal mixture of gases and other atmospheric particles in the interests of optimizing the health of humans and other animals that use the atmosphere for pursuing their particular interests.” And such a rephrasing should acquire bipartisan support, as environmentalists should find this to be a better law; big business, unless it’s a big polluter, should value healthy workers; and the Christians who still dominate the United States should take that as a positive contribution to their Biblical stewardship duties – unless they believe stewardship is just another word for raping the resources of the land, as I’m told some do. Former Secretary of the Interior James Watt comes to mind as I consider the thought.
So, feeling much better now.
