Journally Speaking: Roads traveled, revisited

In the days leading up to the authoring of this JS, US industry is awaiting guidance from its highest court regarding its determination as to whether the US Environmental Protection Agency (EPA) has authority to regulate industrial greenhouse gas emissions (GHG), or whether that power belongs solely to elected legislators.

While the case specifically addresses GHG emissions from power plants, ultimately it will impact regulation of emissions in most, and foreseeably all, industrial settings.

Back and forth

During the past 15 years, this editor has observed and covered the downstream industry’s multiple initiatives to upgrade, modernize, and implement grassroots technologies to reduce, and in some cases, eliminate, carbon dioxide (CO2), GHG, and other toxic emissions from its myriad refining and chemical complexes. These were project investments well-made to protect the health and safety of communities surrounding these complexes, but investments hard-fought for as well.

Uncertainty in relevant regulatory frameworks and rulemakings done and undone with every change of elected officials or administrations adds to the confusion. Historically, the US Supreme Court served as a balancing factor, a non-political body to outweigh whatever partisan wars might be raging outside its walls. That’s what a judiciary does, that’s its function.

While its decision in West Virginia v. EPA has yet to be published at the time of this writing, a host of industry experts and observers anticipate a decision that will follow in tow with a series of other recently published decisions that indicate a preference for diminishing the federal government’s power to regulate or protect the rights of its citizens.

States in which industrial operations support jobs and create revenue obviously would welcome the autonomy to decide how, when, and if the US Clean Air Act should be used in any way to regulate plant emissions. That’s simply good business, both for the state and plant owners-operators.

That said, in light of where many of these industrial plants are located (e.g., low-income, ethnically diverse, historically marginalized communities), is it really all that wise to allow local politicians that admittedly profess to serving “the best interests of their constituency” first to make or push through legislation that potentially could sacrifice the health of already traditionally left-behind residents?

Because the boundaries of EPA legislation aren’t the only thing the high court has been and will continue to be deciding.

Tolls ahead

What’s happening and what will be happening as a result of the judiciary’s current approach to constitutional interpretation bears out what happens again and again in American history. Sadly.

When the mechanism purposefully designed to be impartial, balancing the two poles of the body politic, begins to show signs of erosion, its mechanics inevitably will one day be corrected. But this will take a long while, and while this change is being wrought, innumerable other corrections will have to be made.

Voters will mobilize and the balance of legislative bodies will be changed. The industry needs to be prepared to cope with the results of these changes.