Legal Terrain

Smoky Skies: We’re All In This Together

June 22, 2023


We’ve become accustomed to weather-related and other natural disasters in recent years. The devastating impacts of record levels of cold, heat, drought, rainfall, tornadoes, hurricanes, and earthquakes fill up our daily news cycles. Earlier this month, we faced a somewhat different threat: air pollution emanating from forest fires many hundreds of miles away in Quebec and Nova Scotia.  The smoke plume affected tens of millions of people, causing air quality warnings and the curtailing of outdoor activity up and down the East Coast. In Massachusetts, we will long recall the week of thick haze covering our local skies and the strange, muted, orangey sunsets. When my daughter from Brooklyn called during one of the smokiest days to tell me that “we’re all wearing masks again,” it brought up eerily familiar memories.

While most terrifying weather events tend to be localized in impact, there can be no doubt about the potentially wide-ranging impact of air quality disasters. The Canadian forest fire emissions and their downwind journey to the United States serve as a dramatic example.

The recent Canadian wildfire threat brings to mind an important Supreme Court decision from last term, West Virginia v. EPA. In that case, the Supreme Court held that the Clean Air Act did not contain a sufficiently broad delegation of authority to EPA to allow the agency to broadly regulate greenhouse gas emissions from coal-fired plants. The decision largely rests on the so-called “Major Questions” doctrine. This school of thought holds that courts should interpret the authority of federal agencies narrowly and look for a clear congressional authorization in the enabling statute when addressing extraordinary cases with issues of significant economic or political implications. Conservatives hailed the West Virginia decision as a victory in limiting the federal government’s authority, while liberals and climate change activists derided it as gutting the ability of the federal government to impose critical restrictions on major sources of air pollution. Regardless of one’s political perspective, following the West Virginia case, and absent a highly unlikely Congressional amendment to the Clean Air Act, much of the burden for solving our nation’s air pollution issues is now left to the individual states.

Toward that end, in Massachusetts, the Healy Administration is expected to make significant progress on the Commonwealth’s climate change agenda empowered by a major legislative initiative enacted in 2021 entitled: “An Act Creating A Next-Generation Roadmap for the Massachusetts Climate Policy.”  In December 2022, the Office of Energy and Environmental Affairs issued the Massachusetts Clean Energy and Climate Plan for 2050 with a goal of achieving Net Zero greenhouse gas emissions by 2050.

The Commonwealth’s climate change policy is ambitious and well-meaning. However, we must be mindful that Massachusetts is only one state and a small, primarily downwind one. Solving the climate crisis and making our air safe to breathe is a national and international problem. A patchwork of solutions offered by certain states that choose to carry the burden without the support of a national policy with implementation by the federal government and enforcement by the courts is not an effective strategy. As the recent Canadian wildfires so clearly remind us, wind currents do not respect state, national, or international boundaries.

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