January 11, 2022

Lessons from the Pandemic About Making Decisions Without Statutes

Posted on January 11, 2022 by David G. Mandelbaum

The New York Times recently published a column arguing that the movie “Don’t Look Up,” intended as an allegory about American reaction to climate change, really works better as an allegory about our reaction to the Covid-19 pandemic.  Douthat, We Need a Second Cut of “Don’t Look Up”, 171 N.Y. Times No. 59,298 (Jan. 9, 2022) at SR-7.   In my January 2021 column for the Legal Intelligencer’s Pennsylvania Law Weekly I suggested the opposite, or maybe an inside-out version of the same thing:  “[t]he governmental response to the viral pandemic is . . . a dress rehearsal for economywide measures to mitigate and perhaps to adapt to climate change.”  Mr. Douthat has hundreds of thousands of readers, I am sure.  Pennsylvania lawyers to whom I am closely related do not even read my column.  Even so, maybe there are things to learn here for our practice.

Legislatures have left executive branch officials for the most part without specifically tailored statutory tools to impose public health measures in response to the pandemic.  Congress has not adopted a standard for when any federal agency should impose a lockdown, a quarantine, a vaccination or testing requirement, or a mask mandate.  In states, legislatures have been more active prohibiting those sorts of measures.  But, for the most part, executive branch officials have been left to do the right thing using more general authorities or no authorities.

In recent weeks, we have seen where that can lead.  Executive action draws challenges routinely.  Without specific statutory authority, those challenges get legs. 

On January 7, the Supreme Court heard argument in challenges to adoption of a temporary emergency standard under the Occupational Safety and Health Act requiring vaccination or testing of all employees at large employers.  Nat’l Fed’n Indep. Bus. v. Dept. of Labor, No. 21A244 (U.S. arg. Jan. 7, 2022); Biden v. Missouri, No. 21A240 (U.S. arg. Jan. 7, 2022). The legal – as distinct from political – issues before the Court have to do with whether the Occupational Safety and Health Administration (a) has statutory authority to impose a vaccination requirement at all and (b) whether it can impose that requirement as a temporary emergency standard without complete formal rulemaking. 

Closer to my home, the Pennsylvania Supreme Court – a court with a Democratic majority – just last month struck down a school mask-mandate imposed by the Commonwealth’s Health Department.  Corman v. Acting Sec’y Pa. Dept. Health, No. 83 MAP 2021 (Pa. Dec. 23, 2021).  There, the Acting Secretary had ordered schools to require masks without specific statutory authority or compliance with Pennsylvania’s particularly cumbersome rulemaking process.

Do these cases presage problems for federal regulatory response to climate change?  The question presented in the pending challenge to the Obama Administration’s Clean Power Plan, West Virginia v. EPA, No. 20-1530 (U.S. cert. granted Oct. 29, 2021), is:

  • In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements?

Section 111(d) of the Clean Air Act authorizes adoption of performance standards for existing stationary sources of air pollution.  The Court will decide whether that authority allows rules like the Clean Power Plan, even though the Biden Administration has abandoned the Clean Power Plan.

There are reasons to be concerned when a decision maker does not have fairly clear authority and at least some criteria for deciding, even for those of us who favor aggressive government responses.  We are familiar with situations in which decision makers must make the right choice without standards.  Often in those circumstances the law substitutes process for standards.  To take an obvious example from the Comprehensive, Environmental Response, Compensation, and Liability Act (because I am apparently required to make a CERCLA reference), in a contribution action to determine what portion of the cleanup costs each responsible party ought to pay, “the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.”  42 U.S.C. § 9613(f)(2).  That is, the court is to do fairness.  That is hardly statutory direction, but the court has the benefit of trial and argument on which to base its judgment.  Those who practice in the area, however, surely experience the frustration of trying to align the view on allocation taken by the government – which also has no guidance – with that likely to be taken by the court.  The government’s views will emerge in settlement or enforcement decisions, and there is no process by which to influence them.

In a crisis, there may be no time for the available processes.  One can adopt a statute in a week, but one cannot readily go through notice and comment rulemaking with that kind of speed.  The pandemic has been around for two years now.  The Pennsylvania Supreme Court in the mask mandate case and several justices of the United States Supreme Court in the vaccination mandate case were uncomfortable without full rulemaking after this time.

The environmental regulatory issues are not identical to the pandemic response issues, but the pandemic cases may suggest weaknesses or strengths in each side of the environmental cases, and not just climate change cases.  But fundamentally, as in the movie, the problem is political.  The legislature has not legislated recently or specifically.  That leaves it to lawsuits, and that’s often not a good thing for anyone but lawyers.