Since COVID-19 began spreading across the United States, the country’s hospital system began facing limits: the maximum number of patients hospitals can accommodate while still maintaining sufficient levels of PPE, maximum numbers of ICU beds and ventilators, and a sufficient number of healthy staff.[1] When hospitals face shortages and overwhelming amounts of patients, they are forced to make difficult life-and-death decisions.[2]
The “flatten the curve” model for disease control is now part of the collective discourse, and it can be useful in different contexts, particularly relating to climate laws and regulations. The climate budget—“the amount of carbon dioxide that can still be released into the atmosphere bewhile limiting global warming to 1.5°C above pre-industrial levels”[3]—is analogous to the capacity of the United States’ hospital system during the COVID-19 pandemic. If too much carbon dioxide is released too fast, the consequences could be dire. Where climate legislation is concerned, policymakers should adopt the flatten the curve model to curb the impacts of climate change.
Based on scientific predictions, the budget will be depleted in less than ten years if global warming continues at its current pace.[4] If the budget reaches zero, the Earth will see an influx of fires, droughts, famines, and other natural disasters.[5] Without a positive balance in the budget, the atmosphere will become irreversibly saturated with carbon emissions.
Like a hospital’s capacity, the climate budget must also account for exacerbating factors that use more resources or use them at faster rates. In both cases, these factors include the lack of a fast and uniform response, inequality in outcomes due to systematic inequality, and the difficulty of attaining large-scale compliance. In order to apply the flatten-the-curve model, it is important to pass legislation that counterbalances these effects.
Throughout the world, climate change has been relatively under-regulated since it became prominent during the Industrial Revolution.[6] Manufacturing in Europe, Asia, and North America picked up in the late eighteenth century, and by the mid-nineteenth century, the effects of industry had manifested through a gradual warming in the Arctic.[7] Given that the initial effects were not immediately felt in the countries producing them, there was no proactive legislation to limit the emission of greenhouse gases.[8] By the time the effects were noticeable, they were deeply rooted beneath the guise of doubts and historic climate patterns. And once the problem was recognized, action had to be taken much more quickly in order to make up for lost time.[9] Much like the pandemic response, a severe and rapid passage of, and adherence to, regulations was not easily attainable. No matter how scientifically-driven the legislation was, there would still be some skeptics, some who adapted and followed COVID-19 guidelines, and some who were hit disproportionately hard by the virus.
Systematic factors of climate change and coronavirus, including a higher percentage of essential workers, fewer health resources, and lower average incomes, disproportionately affect minority populations.[10] These communities also feel the most extreme impacts of climate change. Minorities make up a large percentage of the working class, which typically consist of lower paying jobs.[11] In some cases, they have to live closer to public transportation because they cannot afford their own source of reliable transportation, forcing them into urban areas bordering industrial zones.[12] These areas have lower property values, which makes them affordable for lower-income families and desirable for industrial sites.[13]
The disproportionate impact of the coronavirus on minority communities is one of the lasting impacts of redlining, a process through which banks denied mortgages to many American people of color in urban areas and prevented them from getting loans to renovate their houses or buy houses in certain neighborhoods.[14] Although this process is no longer legal under the 1968 Fair Housing Act[15] and the 1977 Community Reinvestment Act[16], communities of color still reside in redlined zones, which are closer to industrial sites, highways, and other sources of pollution.[17] These communities, having lower income levels per capita and being victims of voter suppression throughout history, do not have the political capital to prevent polluting agents from being built in close proximity to their communities.
The groups that have been harmed by redlining are the same groups that have historically been denied equality in political power and representation. This began with imperialism and slavery, and was explicitly projected in the infamous Dred Scott v. Sandford decision, which ruled that anyone, “whose ancestors were imported into [the U.S.], and sold as slaves,” could not be an American citizen, and thus was unable to vote.[18] The impacts of Dred Scott were much more far-reaching than that Court could have foreseen. Although minority groups now have the right to vote, they are still unable to fully exercise these rights due to state-level restrictions, such as redistricting, that dilute minority voting strength.[19] Thus, the problem of environmental injustice can only be solved through legislation.
Due to the lengthy process of passing a law, legislation generally lags behind capricious situations like climate change. While regulations have slowly come to fruition, the climate is worsening at an exponential rate because the concentration of greenhouse gases in the atmosphere is cumulative.[20] Legislation, on the other hand, is fundamentally linear, making it difficult to keep up with the growth of climate change. In this way, the growth of climate change parallels that of the coronavirus, which also grows exponentially as the concentration of the virus in the population accumulates. The parallels between the COVID-19 pandemic and the climate crisis have demonstrated that climate change will have devastating consequences if laws are not created to halt it.
Legislation is not enough to halt the climate crisis because it is ineffective if it can be easily flouted by those who choose not to adhere, such as corporations who may profit more by ignoring the laws. Under federal law, it is permissible for the U.S. Secretary of Health and Human Services to take measures to prevent the spread of communicable diseases into and within the United States.[21] Additionally, the function of the Centers for Disease Control and Prevention is to monitor people entering the country to track the potential spread of such diseases. State governments have the power to create and enforce COVID-19 regulations.. Different states have handled these restrictions differently, with some states, like New York, enforcing strict restrictions,[22] and others, like Oklahoma, employing much more relaxed guidelines.[23]
Many businesses and organizations believe that these restrictions are an infringement of their liberties, filing lawsuits against state governments. In New York, for example, Governor Andrew Cuomo signed Executive Order 202.8, which designated gun stores as non-essential businesses and demanded that they close.[24] The National Rifle Association sued the state, claiming that by closing gun stores, the state was making it impossible to purchase a gun legally within its borders, thus violating the Second Amendment.[25] In Pizza Properties, Inc. v. El Paso County, restaurant owners claimed that Richard Samaniego, the El Paso County Judge, usurped government power in going against Texas Governor Greg Abbott’s orders to reopen the economy.[26] The disputes over COVID-19 restrictions illustrate the challenge of attaining the large-scale compliance necessary to curb its spread.
The United States currently has laws in place to regulate clean air, clean water, endangered species, and toxic substances.[27] Each serves a specific purpose. The Clean Air Act is primarily concerned with addressing the emission of hazardous air pollutants.[28] The Clean Water Act is concerned with regulating water standards through limiting the discharge of pollutants into water.[29] The Endangered Species Act provides an outline for protecting endangered and threatened species and their habitats.[30] The Toxic Substances Control Act addresses chemicals, including their production, use, and disposal.[31] These laws are a good foundation for slowing the progression of the climate crisis, but the role that the federal government should play in enforcing them is not as clearly outlined as the laws themselves.
Regulations are created, and both public and private groups are expected to adhere to them. But in some cases, it is more economically beneficial for businesses not to comply and to pay fines than to change their practices.[32] For large corporations especially, it is in some cases cheaper to pay fines or relocate than it is to completely overhaul their industrial processes to be more sustainable.[33] But by not complying with environmental regulations, corporations are hurting many Americans and putting undue strain on the climate budget.
An example of stricter regulations are those that were put on the oil industry after the 1989 Exxon Valdez oil spill in Prince William Sound, Alaska. Following the catastrophic incident, Congress passed the Oil Pollution Act of 1990, which “‘streamlined and strengthened [the] EPA’s ability to prevent and respond to catastrophic oil spills,’ and increased the penalty for noncompliance” for corporations.[34] This legislation was necessary and helpful, but it was reactive. In order to truly prevent these types of environmental disasters, legislation has to be proactive, leaving few loopholes for noncompliance. Even three decades later, significant amounts of oil still remain in Prince William Sound, contaminating the water and having a continuously detrimental impact on the ecosystem in the area.[35] These long-term impacts illustrate the importance of an active governmental role in creating and enforcing proactive environmental regulations.
Supreme Court cases like Massachusetts v. Environmental Protection Agency[36] have helped define the role that the federal government should play in enforcing environmental regulations. In this case, Massachusetts argued that under the Clean Air Act, the EPA, a government agency, was responsible for regulating the greenhouse gases emitted by motor vehicles due to their direct impact on global warming.[37] The EPA argued that it was not authorized to regulate such emissions and that it had the right to defer a decision on regulations until further research was done regarding the effect that greenhouse gas emissions have on the environment.[38] The Court ruled that Massachusetts had grounds to sue the EPA for the damage that the agency’s inaction caused to the state and the EPA’s delay in enforcing regulations was unjustified, giving the agency the authority to enforce restrictions on air pollutants under the Clean Air Act.[39] This case helped define the active role that the federal government should play in enforcing climate regulations.
A notable difference between climate change regulation and COVID-19 restrictions is that COVID-19 restrictions have been temporarily enacted to flatten the curve until there is a vaccine. Climate change regulations, on the other hand, must consist of long-term solutions. Thus, the climate change curve is on a longer timeline than the COVID-19 curve, and flattening it may take more momentum. A steep climate curve, caused by a failure to regulate emissions and an excess of greenhouse gases being released into the atmosphere, will overwhelm the world’s food supply, force people into poverty, and ruin economic growth.[40] A flattened curve, attained through cutting carbon emissions, will enable a long-term budgeting of our carbon emissions and enable avoidance of the most dangerous consequences of the climate crisis.
Just as restrictions including curfews, mask mandates, and the closure of non-essential businesses were used during the beginning of the COVID-19 epidemic in America, restrictions must be used in the climate crisis. As seen with the pandemic, when restrictions are not adhered to or lifted too early under a false assumption of progress, the curve spikes again. These spikes emphasize the importance of diligence in regulations and vigilance in enforcing them. The same principle applies for climate change. Whether the solution to the climate crisis takes the form of incentives for businesses to switch to carbon-neutral practices, restrictions on industries’ abilities to produce carbon dioxide, or the creation of new jobs in renewable energy, they must be wide ranging, enforceable, and equitable. If the scales are balanced among these factors and efforts are taken to reduce carbon emissions, society can avoid the more perilous effects of the climate crisis and flatten the climate curve.
[1] Nicoletta Lanese, What Happens When the ICU is Full?, Lɪᴠᴇ Sᴄɪᴇɴᴄᴇ (Nov. 10, 2020), https://www.livescience.com/icu-capacity-explained.html.
[2] See id.
[3] Colin Moynihan, A New York Clock That Told Time Now Tells the Time Remaining, N.Y. Tɪᴍᴇs (Nov. 10, 2020), https://www.nytimes.com/2020/09/20/arts/design/climate-clock-metronome-nyc.html.
[4] See id. See also David Roberts, The sad truth about our boldest climate target, Vᴏx (Jan. 3, 2020), https://www.vox.com/energy-and-environment/2020/1/3/21045263/climate-change-1-5-degrees-celsius-target-ipcc.
[5] U.N. GAOR, 73rd Sess., ___ mtg. A/12131/PV (March 28, 2019).
[6] Contribution of Working Group I to the Fourth Assessment Report of the IPCC, Climate Change 2007: The Physical Science Basis, 97 (2007), available at https://www.ipcc.ch/site/assets/uploads/2018/05/ar4_wg1_full_report-1.pdf.
[7] Id. at 115.
[8] Richard Black, A Brief History of Climate Change, BBC Nᴇᴡs (Nov. 10, 2020), https://www.bbc.com/news/science-environment-15874560.
[9] See id.
[10] Health Equity Considerations and Racial and Ethnic Minority Groups, Cᴇɴᴛᴇʀ ғᴏʀ Dɪsᴇᴀsᴇ Cᴏɴᴛʀᴏʟ ᴀɴᴅ Pʀᴇᴠᴇɴᴛɪᴏɴ (July 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html.
[11] Labor force characteristics by race and ethnicity, 2018, U.S. Bᴜʀᴇᴀᴜ ᴏғ Lᴀʙᴏʀ Sᴛᴀᴛɪsᴛɪᴄs (October 2019), https://www.bls.gov/opub/reports/race-and-ethnicity/2018/home.htm.
[12] See id.
[13] See Casey Berkovitz, Environmental Racism Has Left Black Communities Especially Vulnerable to COVID-19, Tʜᴇ Cᴇɴᴛᴜʀʏ Fᴏᴜɴᴅᴀᴛɪᴏɴ (Nov. 10, 2020), https://tcf.org/content/commentary/environmental-racism-left-black-communities-especially-vulnerable-covid-19/?session=1&session=1 (“For these reasons and more, neighborhoods with large non-white populations have historically seen lower property values, meaning that land in those areas is cheaper for industrial actors to acquire—leading to greater pollution.”).
[14] Kristopher Brooks, Redlining’s Legacy: Maps are Gone, but the Problem Hasn’t Disappeared, CBS Nᴇᴡs (Nov. 10, 2020), https://www.cbsnews.com/news/redlining-what-is-history-mike-bloomberg-comments/.
[15] Fair Housing Act, 42 U.S.C. 3601–3619 (1968).
[16] Community Reinvestment Act, 12 U.S.C. § 5301 (1977).
[17] Johnny Miller, Roads to Nowhere: How Infrastructure Built on American Inequality, Tʜᴇ Gᴜᴀʀᴅɪᴀɴ (Nov. 10, 2020), https://www.theguardian.com/cities/2018/feb/21/roads-nowhere-infrastructure-american-inequality.
[18] Dred Scott v. Sandford,60 U.S. 393, 403 (1857).
[19] For example, the Texas State Legislature passed a redistricting plan that was ruled unconstitutional for diluting minority votes in violation of the Voting Rights Act. See LULAC v. Perry, 548 U.S. 399, 439–40 (2006).
[20] See Howard Kunreuther & Paul Slovic, What the Coronavirus Curve Teaches Us About Climate Change, Pᴏʟɪᴛɪᴄᴏ (Nov. 10, 2020), https://www.politico.com/news/magazine/2020/03/26/what-the-coronavirus-curve-teaches-us-about-climate-change-148318.
[21] Public Health Service Act, 42 U.S.C. § 264 (2011).
[22] See N.Y. Exec. Order No. 202.3 (2020). See also N.Y. Exec. Order No. 202.75 (2020).
[23] See Okla. Exec. Order No. 2020-07 (2020).
[24] See N.Y. Exec. Order No. 202.8 (2020).
[25] See National Rifle Association v. Cuomo, No. 1:20-CV-385 (N.D.N.Y. Aug. 14, 2020).
[26] See Pizza Properties, Inc. v. El Paso County, No. 08-20-00226-CV (Tex. App. Nov. 13, 2020).
[27] See David Chung et. al., Environmental law and practice in the United States: Overview, Tʜᴏᴍsᴏɴ Rᴇᴜᴛᴇʀs Pʀᴀᴄᴛɪᴄᴀʟ Lᴀᴡ (Nov. 10, 2020).
[28] Clean Air Act, 42 U.S.C. § 7401 et seq. (1970).
[29] Clean Water Act, 33 U.S.C. § 1251 et seq. (1972).
[30] Endangered Species Act, 16 U.S.C. § 1531–1544 (1973).
[31] Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. (1976).
[32] David Drake & Robin Just, Ignore, Avoid, Abandon, and Embrace: What Drives Firm Responses to Environmental Regulation?, Hᴀʀᴠᴀʀᴅ Bᴜsɪɴᴇss Sᴄʜᴏᴏʟ (Nov. 10, 2020), available at https://www.hbs.edu/faculty/Pages/item.aspx?num=49096.
[33] See id. at 15–16.
[34] See id. at 2.
[35] Research shows that because of how much oil was spilled in the Exxon Valdez spill in Prince William Sound, the area is still seeing detrimental environmental impacts linked to the oil spill. See Sarah Graham, Environmental Effects of Exxon Valdez Spill Still Being Felt, Tʜᴇ Sᴄɪᴇɴᴛɪғɪᴄ Aᴍᴇʀɪᴄᴀɴ (Nov. 10, 2020), https://www.scientificamerican.com/article/environmental-effects-of/#:~:text=On%20March%2024%2C%201989%2C%20the,days%20immediately%20following%20the%20spill.
[36] 549 U.S. 497 (2007).
[37] See generally id.
[38] See id. at 497.
[39] See id. at 522 (“On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a “judgment” that such emissions contribute to climate change. We have little trouble concluding that it does.”).
[40] U.N. GAOR, 73rd Sess., ___ mtg. A/12131/PV (March 28, 2019).
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