The recent SCOTUS decision on EPA Oversight could affect asbestos regulation.

One of the most turbulent Supreme Court terms in recent years ended with a decision that could be more impactful than the other headline-grabbing opinions the Supremes recently issued.

What was the Supreme Court case of W. Virginia v. EPA all about?

On its face, 2022’s West Virginia vs. Environmental Protection Agency was about the Obama-era Clean Power Plan, greenhouse gasses, climate change, and alternative energy sources. Many protest songs will be written about these issues. We’re thinking about writing one ourselves. What word rhymes with “agency”?

Fundamentally, however, this case is about the power of a federal agency to issue regulations without express Congressional approval. Such separation of powers questions have beleaguered the courts since the days of Marbury vs. Madison (1803) and Gibbons vs. Ogden (1824). Marbury established the principle of judicial review and Gibbons significantly expanded the interstate commerce clause. These decisions seemed trivial at the time, but they had earth-shattering consequences.

How is the SCOTUS ruling in W. Virginia v. EPA related to asbestos regulation?

Now, here’s the asbestos connection. Asbestos fibers, just like fossil fuel emissions, are airborne contaminants. If the EPA cannot enact aggressive rules that reduce fossil fuel emissions, it also cannot pass aggressive anti-asbestos rules.

Breaking Down the Supreme Court’s Decision in W. Virginia v. EPA

We mentioned the CPP above. Let’s take a closer look at this political football that was the center of the Court’s decision.

The original 2015 CPP, which was an extension of the 1970 Clean Air Act, gave the EPA the power to regulate emissions “inside the fence,” using technology to reduce current power plant and other emissions, and “outside the fence,” using alternative energy sources to slash emissions. Several states, including coal-producing states like West Virginia, sued to stop these rules.

President-elect Donald Trump tapped Dr. Scott Pruitt, a noted climate change skeptic, to head the EPA in 2017. Gutting the CPP was one of the first items on Dr. Pruitt’s agenda. Once again, the lawsuits began flying, this time from environmental and progressive groups.

Due to all this back and forth, neither the original CPP nor the revised plan went into effect. They’ve both been tied up in court, until now.

SCOTUS’ decision in W. Virginia v. EPA relied on the “Major Questions Doctrine.”

What is the Major Questions Doctrine?

In a 6-3 decision, Chief Justice John Roberts used the nebulous major questions doctrine, which the Supremes first invoked in 1994, to strike down the 2015 CPP and uphold the newer version. “In certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there,” he wrote. “To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims,” he added.

The Major Questions Doctrine in simple terms

Basically, a court uses the major questions doctrine to reign in agencies which, in that court’s opinion, are coloring outside the lines. Chief Justice Roberts essentially said that the EPA exceeded its authority under the Clean Air Act when it passed the aforementioned “outside the fence” CPP rules. Only “inside the fence” restrictions are possible under current law, according to the Chief Justice. If the President, through the EPA, wants to do more, that’s fine, as long as the agency has Congressional approval.

Writing in dissent, Justice Elena Kagan attacked the court’s “frightening” and “troubling” decision because “it does not have a clue about how to address climate change.”

W. Virginia v. EPA and the Chevron Deference Rule

This decision may have also affected the so-called Chevron deference rule. Under this doctrine, which comes from 1984’s Chevron U.S.A., Inc. vs. Natural Resources Defense Council, Inc., courts defer to executive agencies in their interpretation of Congressional environmental laws if, according to Justice John Paul Stevens, “the statute is silent or ambiguous” and the agency’s rule “is based on a permissible construction of the statute.”

Chief Justice Roberts’ opinion certainly dilutes this rule. The Obama EPA probably thought it was using vague statutory language (pretty much all statutory language is vague) to carry out the intent of Congress. However, the majority opinion didn’t specifically address Chevron, so we’ll just have to wait and see.

Asbestos Ban Options

In terms of divisive environmental issues, asbestos exposure used to be what climate change is today. Construction crews began using asbestos around 1900. By the 1970s, builders used asbestos almost everywhere. They even used asbestos-laced cement. By the 1980s, many people believed that an asbestos ban was appropriate, given the health risks. Others believed that the cost of asbestos abatement exceeded the benefits of cleaner air.

Current asbestos regulations that could be affected by SCOTUS’ ruling in W. Virginia v. EPA

Despite the deep divisions, lawmakers managed to pass some anti-asbestos laws. Some safety and clean air advocates still want to go further and outlaw asbestos altogether. Could existing laws support an asbestos ban in the post-West Virginia vs. EPA legal world?

  • Clean Air Act: As discussed above, this law gives the EPA the power to regulate existing emission standards. However, in light of the Court’s recent interpretations of the major questions doctrine and the Chevron deference rule, the Clean Air Act probably doesn’t give the EPA the authority to ban asbestos.
  • Safe Drinking Water Act: Under the legislative companion to the Clean Air Act, the EPA may regulate the amount of contaminants, including asbestos, in drinking water. Theoretically, the EPA could declare that zero is the only safe asbestos level and effectively ban this substance. But under current law, that would be a reach.
  • Asbestos School Hazard Abatement Reauthorization Act: The 1984 ASHARA, a lesser-known law which was updated in 1990, might be the EPA’s best hope for a full asbestos ban. This law, which required asbestos abatement in schools, includes the principle that asbestos is dangerous to children. Therefore, according to the spirit of this law, any building where children gather shouldn’t contain asbestos. This analysis might pass muster under the major questions doctrine, but the Chevron deference rule is iffy.

Other possibilities include the Toxic Substances Control Act, the Asbestos Information Act, and the NESHAP (Asbestos National Emission Standards for Hazardous Air Pollutants). All these laws regulate asbestos levels.

The current need for an asbestos ban

A government asbestos ban would keep people safe from diseases like mesothelioma, a rare form of heart-lung cancer that’s usually fatal, and asbestosis, a rare lung disease that’s often fatal as well. 

However, a legal ban, even one that the courts uphold, would do nothing to compensate asbestos exposure victims. For victims to have any chance of surviving asbestos exposure illnesses, they need substantial financial resources. That’s where the lawyers get involved.

During the 1980s anti-asbestos push, many asbestos producers and users closed their doors. So, these claims are complex. However, these victims still have legal options. 

If the asbestos producer is still operating, a defective product claim is usually the best alternative. Manufacturers are strictly liable for the injuries their defective products cause. Additionally, by the 1980s, asbestos’ health hazards were widely known, yet these companies kept selling this dangerous substance.

Legal standard for lawsuits involving asbestos exposure

Builders and other asbestos users were well aware of the risks as well. However, a different legal standard applies in these cases. Compensation is available if a victim/plaintiff proves the builder, building owner, or other responsible party was negligent. Basically, negligence is a lack of care. Furthermore, in most cases, an asbestos lawyer must also prove the defendant knew, or should have known, the structure contained asbestos.

An asbestos trust fund action could be available as well. Federal judges forced companies to fund multi-billion-dollar victim compensation funds as a condition of their bankruptcies. Legally, a VCF claim is a hybrid of defective product and negligence claims. Usually, the applicant must establish the source of the asbestos.

That’s why AsbestosClaims.Law has developed W.A.R.D. (Worldwide Asbestos Research Database), the largest and most comprehensive database of asbestos-related information in the world. Using W.A.R.D., the team at AsbestosClaims.Law can find the documents and information needed to show that a person was exposed to asbestos, even many decades ago. 

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There are also asbestos trusts – financial accounts that were set up to compensate people harmed by asbestos exposure – and W.A.R.D. can also help determine which trusts owe money to a particular client.

The anti-asbestos push might be over, but the health hazards remain. The aforementioned illnesses, and others like them, usually have at least a fifty-year latency period. Therefore, people who were exposed in the 1980s, 1970s, 1960s, or even 1950s might just now show some signs of illness.

AsbestosClaims.Law

AsbestosClaims.law is your comprehensive resource for all things asbestos. We hope this information is helpful.

If you have any additional questions or concerns related to asbestos, check out our website and YouTube page for videos, infographics and answers to your questions about asbestos, including health and safety, asbestos testing, removing asbestos from your home and building, and legal information about compensation for asbestos injuries.

And if you believe that you were exposed to asbestos, or have been diagnosed with an asbestos illness, you could be entitled to significant compensation—money you could use to cover the costs of asbestos removal services, pay for medical treatment, and preemptively protect your physical well-being. 

All without filing a lawsuit.

If you’d like help with filing a claim, please get in touch by email at [email protected], or call or text us at (206) 455-9190. We’ll listen to your story and explain your options. And we never charge for anything unless you receive money in your pocket.