What the Chevron Decision Could Mean for Environmental Justice in the Midwest
At the end of June, the Supreme Court ruled to overturn the Chevron Doctrine, a forty-year-old legal precedent that gives deference to federal regulatory agencies to interpret legal ambiguities through their rulemaking. Many legal experts and environmental justice advocates have decried the decision for empowering courts to have an increased hand in policy making decisions, while shifting rulemaking power away from experts and community accountability. While the full impact of this ruling remains to be seen, it is expected to impact agencies responsible for everything from environmental protection to healthcare, oil leasing, and federal relationships with tribal nations.
Environmental Justice Organizations Respond Nationwide
The reversal has shaken the bedrock of many regional fights for environmental justice, accountability from polluters, and protections against further environmental harm. Groups like the Climate Justice Alliance (CJA) and We ACT for Environmental Justice issued statements condemning the ruling. Juan Jhong Chung, Co-Executive Director of partner organization Michigan Environmental Justice Council noted in the CJA statement that this reversal will disproportionately impact fenceline communities of color.
“The SCOTUS ruling today directly undermines many of our communities’ efforts to address the deepening climate crisis and is a slap in the face to frontline communities who have been fighting for decades to ensure their families, children and neighbors can breathe in clean air and have access to clean and affordable water, rather than increased rates of asthma, chronic disease and debilitating health conditions, among other things.”
At a moment when federal measures like the Inflation Reduction Act are trying to strengthen the collective action of federal regulatory agencies in order to curtail climate chaos, this ruling now shifts the burden of environmental regulation onto an increasingly divided federal legislature and state agencies.
“The implications of these decisions also mean we will increasingly rely on state laws to regulate pollution and protect public health,” We ACT for Environmental Justice Co-founder and Executive Director Peggy Shepard wrote in response last month.
“This represents a significant federal setback at a crucial time when agency-led policies–informed by community input and date–are urgently needed to safeguard environmental justice communities.”
Impact on Environmental Justice in the Midwest
At a regional level, some of the biggest battles around clean water and air could be impacted. Current state-by-state laws around PFAS regulations serve as one example. In states like Michigan, the EPA delegates authority for carrying out federal regulations to state agencies like the Department of Environment, Great Lakes and Energy (EGLE). In this role, EGLE is responsible for issuing water quality permits for polluting facilities in the state. What counts as a water pollutant could be put into question based on what is or is not explicitly named in legislation like the Clean Air and Clean Water Acts. As one Planet Detroit article pointed out, this could impact statewide efforts to regulate PFAS and other forever chemicals not explicitly named in the federal legislation.
PFAS drinking water contamination has been a longstanding concern in many communities across the Midwest, with partner organizations like Wisconsin Green Muslims building their own resource guide for Wisconsin residents who want to test municipal levels of PFAS in their drinking water sources. Ohio, Wisconsin and Minnesota and Iowa rank among the highest levels of PFAS contamination in water across the country, according to a recent Environmental Working Group map, while Michigan has been cited as the state with the highest levels of PFAS drinking water contamination nationwide as of 2019. At the same time, continued community organizing at the grassroots level leaves open the possibility of countering these federal impacts on regulations with state and municipal policies that continue to uphold environmental justice goals.
At the judicial level, the outcomes of federal cases brought against regulatory agencies by more conservative Midwestern state governments could be influenced by the recent ruling. Many of these cases challenge recent rulemaking intended to curb pollution. Among them are Nebraska v. EPA, a challenge to the EPA rule around greenhouse gas emissions from heavy-duty vehicles, and North Dakota v. Department of Interior, a challenge to the Department of the Interior’s latest rule around methane emissions from gas flares on tribal and federal land. Each of these cases also involve environmental justice issues that our partner organizations have long been involved in.
For our partners at Fort Berthold POWER, victories against natural gas flares from oil companies’ drilling projects on the Fort Berthold Indian Reservation in North Dakota have been hard won. In the last decade, venting and flaring on federal and tribal lands has increased with the rise of natural gas infrastructure nationwide. As a result, methane loss from venting and flaring has quadrupled from its levels in the 1990s, and has a disproportionate impact on the health of communities like the Mandan, Hidatsa and Arikara Nation. With the recent adoption of the Waste Prevention rule by the Bureau of Land Management, methane waste from flares can finally be curtailed.
“The BLM rule waste rule addresses the royalties lost from unfettered oil and gas production, but for my community on Fort Berthold Reservation, the fact that routine venting and flaring from existing and new wells is not eliminated means the continued waste of tribal resources. Not only do we lose out on revenue through royalties and taxes but we also have to pay the higher costs of healthcare due to exposure to the wasted gas,” Vice President and Founder of Fort Berthold POWER, Rep. Lisa Finley De-Ville (Mandan, Hidatsa, and Arikara Nation) told Earthjustice earlier this year.
But North Dakota v. Department of Interior hopes to reverse this rule, arguing that the Department of the Interior is attempting to play the role of the EPA by regulating methane waste.
When it comes to traffic-related air pollution, partner organizations like Little Village Environmental Justice Organization have done extensive lobbying to tighten truck emission standards at the state and federal level, including the recent development of the Chicago Truck Data Portal. Tighter emissions standards for heavy-duty vehicles are a matter of life or death for the communities in Chicago’s Archer Heights and Little Village, and other fenceline communities nationwide.
Many frontline communities have advocated for tighter emissions standards on heavy-duty vehicles, pointing out that the EPA Rule 3 only regulates emissions standards in 2028 and beyond. But Nebraska v. EPA argues against the recent rule, citing that the EPA is exceeding its statutory authority.
Much Remains to be Seen
While there are a range of regional issues that could be impacted by this decision, the ripple effects of the ruling on environmental justice in the Midwest are still largely unknown.
“We are still figuring out what the legal implications will be,” said CEED Federal Policy Director Ansha Zaman in a call last week. She pointed out that the impacts will depend a lot on what specific campaigns environmental justice organizations in the Midwest are working on.
The Chevron doctrine has been a key tool in federal regulations and rulemaking for the last forty years. It is among one of the most cited precedents in administrative law, providing the legal foundation for courts that have ruled to uphold regulations that larger industries have challenged. The doctrine’s overturn was hailed by conservatives as a way to protect small businesses and prevent federal overreach. But behind many of these federal rules are decades of community organizing against polluting industries, and commitments to uphold protections for fenceline communities across state lines, and in future generations.