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Conversations in Pulmonary, Critical Care and Sleep Medicine by the American Thoracic Society
non: [00:00:00] You are listening to the A TS Breathe Easy podcast, brought to you by the American Thoracic Society.
Gary: Welcome listeners to the A TS Breathe Easy podcast. My name is Gary Ut. And I'm chief for advocacy and government relations for the American Thoracic Society, and it's my privilege to host today's episode titled A TS Clean Air in the Courts, where we will be discussing recent policy action that a TS has taken to keep the airway all breathe pollution free.
I am pleased to be joined today by my colleagues, Nick Niki, who's a member of the A TS Environmental Health Policy Committee, and a clinician and researcher at the Beth Israel Deaconess Medical Center and Andy Mergen, who is the faculty director of the Emmett Environmental Law and Policy Clinic at the Harvard University Law School.
Welcome to you [00:01:00] both. Let's jump right in. Nick, how bad is air pollution?
Nick: Yeah, so I. Would like to lead off by just saying that decades of research has made it clear that bad air is bad for your health. And what does that mean? It means that the research that we've done so far has shown that breathing in polluted air, shortens life expectancy and pairs, lung function, uh, causes and exacerbates cardiopulmonary disease.
So that's, that's settled science. What we're also starting to understand is that the changes in our climate, um, rising temperatures have also led to more extreme weather events. And there's a clearer picture now that that also has implications for a lot of our patients, um, with chronic pulmonary disease.
And then the kind of future, what that looks like is starting to understand how the [00:02:00] warmer temperatures interact with some of the air pollution that we're seeing and how that together can cause problems for our patients. It's not all grim though. There's also a lot of science and evidence out there that shows that when we do something about it, when we implement policies and regulations, we actually can help improve, uh, the health of, uh, people across the world.
Gary: Nick, I gotta say, I always get a little worried when people say it's settled science. Um, give me a study that makes it so crystal clear that you can take it to the skeptic and say, this study makes it obvious to anyone who's really paying attention that clean air, good, dirty, or bad.
Nick: So I think if you look at any single study, there's always something that you can pull out that says, here's a weakness, here's a limitation.
Here's why the results of this study. Might not be generalizable to your state, your community, your country, um, your corner of the world. So one of the things [00:03:00] that I think is a really great resource is, uh, some of the studies that have been published out there, or some of the reports that have been published out there that take all of the science that's been published and say, okay.
Here are all the studies that we've done so far, what does it tell us? And one of the, um, I think, uh, cornerstones of this sort of work was actually done by the EPA, the Environmental Protection Agency. And if I think about choosing one partic, uh, one, um, air pollutant in particular, it's particulate matter.
And so the EPA publishes something called the Integrated Science Assessment that takes all the science that we've gathered so far, puts it into one place and says, okay. Looking at all this science, what can we say? And it's clear from that report that air pollution causes mortality so that, um, science has settled.
Gary: Okay. You've used another buzzword that I wanna follow up on. You said causes mortality. How do we know it causes mortality? 'cause in the world that we all operate in, causality is a pretty strong thing and requires a lot of [00:04:00] evidence. Or how, walk me to causality.
Nick: So what. Establishing causality looks like is.
Taking epidemiology, which is looking at associations on a population level. It's taking studies that are looking at mechanisms, so sometimes those are studies that are done in mouse populations or in human populations, and it's taking all of those different types of studies and putting them together to make an inference about causality.
Now. In the science world, oftentimes we get to causality through randomized control trials to say, this drug can re, you know, reduce the risk of death. Um, or, you know, if you take this medicine, it'll cause you to feel, you know, better. This is a little bit different than what we're talking about here. Here we're saying that air pollution is a problem for, for public health.
How do we know that air pollution itself causes mortality there? We really rely on the, the burden of evidence that's been published so far. [00:05:00]
Gary: I'm convinced. Are you convinced? I'm convinced, yes. Okay. Um, so what authorities do we have at the federal level to do something about this?
Andy: We have a lot of authority in the Clean Air Act enacted in 1970, substantially amended to make it more stringent.
In 1977 and and 1990, the Clean Air Act empowers, um, uh, the Environmental Protection Agency in cooperation with the states to regulate both stationary and mobile sources of pollution. So power plants, uh, vehicles. Trucks, cars, uh, airplanes. And, uh, it, you know, and in addition to sort of those pollutants, but also sort of air toxics things like mercury that are discharged by, from power plants, the authority has cons.
The agency, the environmental protection in has considerable authority to [00:06:00] regulate the, the air pollution that are affects our health.
Gary: So, um, I'm gonna ask a somewhat leading question. So this is federal authority, um, done with the states. Are all states equal or is, is there one state that might have a little more, um, sway in this process than others?
Uh.
Andy: Hey, no. All the states, uh, you know, they, they regulate, uh, under a, a plan, a regime created by the Clean Air Act. And, uh, they deal, like some sources of pollution are heavily localized, and the act, uh, allow states to, to deal with their own sort of geographies and pollution sources. And the, the act also, um, uh, deals with a situation where some states may have.
Be the center of power plants and, uh, other states may be downwind of those power plants. So the act also contemplates that the states will be good [00:07:00] neighbors to each other. So each state is somewhat different in terms of the sources of the pollution and how that pollution manifests itself in particular geographies.
But the act gives states and the federal government a lot of authority to deal with that pollution.
Gary: Okay. It sounds like the states and the federal government do have a lot of authority to address the, our air quality. Tell me, what's the Trump administration doing with that authority?
Andy: The Trump administration is in the, in the midst of a mass.
Massive deregulatory moment. It is stripping EPA or uh, um, attempting to strip EPA of its authority and limiting its authority to regulate a wide, uh, uh, uh, an enormous, uh, number of, of air pollutants. It is walking back. Uh, the mercury and air toxic standards, it is walking back carbon pollution standards.
It [00:08:00] proposes to, um, rescind the greenhouse gas endangerment. Finding all of these things that the administration is proposing to do will dramatically affect, uh, public health. That's Nick's, uh, area, but these are. Incredibly ag, aggressive, ambitious, deregulatory actions that are gonna impact public health.
Gary: Nick, you wanna comment on what some of the fears are? 'cause when I hear deregulation, it sounds like, Ooh, profits go up and my, my retirement savings will just bump up and everyone will be happy. Um, why might this be something a, a moment of concern for both, um, Andy and Nick and the greater population?
Nick: Yeah, so what people might not realize is how important some of these federal agencies have been for public health. If you think about OSHA and the EPA and the CDC, a lot of [00:09:00] these maybe obscure federal agencies for a lot of people have actually played an outsized role in protecting our public health.
And so anytime you look at. Stripping some of these agencies of their ability to regulate air balloons. It's concerning for public health. And so, um, I think if you go back decades when our water was dirty, our air was dirty. And you look at all that we've achieved over the past few decades with the Clean Air Act, the Clean Water Act, we really are living in a better world now than we did before.
And, um, it would just hate to see us go backwards. Um, take a step backwards.
Gary: Okay. So, um, Andy just outlined a, a number of steps that the administration has taken to roll back clean air regulations. Um, Nick, how's the a TS responding to them?
Nick: Yeah, so the a TS has really been a leader on this, this front. And one of the things that a TS has been doing is keeping a really close eye on what are the specific actions, um, on the regulatory level, on the policy [00:10:00] level.
That are being reconsidered or, um, revoked and what does that mean for public health? And in response, um, looking at these different, uh, changes by the administration, we've really set up a, a way of, uh, tackling these. First, it's through amicus briefs, and that involves, um, considering where the science is and how it supports the laws that we have, and we can talk a little bit more about that.
It also involves, you know, providing expert testimony for either preserving or reconsidering different regulatory, um, uh, things that are on the table. Uh, there's also a lot of research and advocacy work that the a TS does does, and so they've really been a leader on this front.
Gary: So Andy, I just heard a phrase that most people aren't familiar with.
Um, and the pressing question is, is it pronounced amicus brief or amicus Brief.
Andy: So Black's Law Dictionary, which is sort of a de definitive resource for [00:11:00] lawyers, all lawyers are familiar with blacks, says that either pronunciation is correct. I am Amicus. Or Amicus. I tend to say amicus. Others I heard, uh, Dr.
Naus say Amicus, either is proper under black slaw dictionary.
Gary: Now that we have that essential legal, uh, matter settled, what is an amicus or an amicus brief and why do we care?
Andy: Yeah, so an amicus brief, um, is a friend of the court brief amicus from the Latin, like amigo. It's her friend. Um, and it's intended to help the court address the legal issues in front of it.
Briefs, Amicus. Amicus briefs from organizations like a TS really play in an important function in terms of putting. Together in a straightforward manner, the, the science that underlies some of these rules, the health [00:12:00] effects that, uh, we can, we that have been studied and verified and, and help the court understand what this regulation means in the real world.
And they have a long history. Um, some of your listeners may have heard of, um, justice Brandeis, Louis Brandeis. He was an advocate before he was a justice, and he was famous as an advocate for one, representing people who needed legal representation for free. And, um, preparing these briefs that are now sort of called Brandeis briefs that.
Incorporate science and social science to, uh, educate courts. And in 1908 he submitted a brief on the effect of work hours on the health of women, what it meant to be standing on your feet 12 hours a day in doing certain types of work, and over time. The courts have recognized that this kind of information, uh, it can be very helpful to [00:13:00] understanding the issues and amicus briefs are, uh, filed routinely in the Supreme Court and very, very often in federal courts of appeals and occasionally in, in federal district courts, and also very often in state courts of appeals and state supreme courts.
And the evidence really is that they can be very helpful. They have to be carefully crafted to be helpful, but they can be helpful. Okay. Who reads them? I'd say in the first instance, the clerks. What does that mean? Each judge on a court has helpers. Those helpers are recent law school graduates, and their job is to digest a lot of the information that's put before the judge.
So in the first instance. These briefs are likely to be read, uh, by the clerks, and the clerks will flag issues for the judge. Some judges are gonna read them themselves and some are gonna delegate that task. But that's one [00:14:00] immediate audience, right? And that's the audience that you're trying to affect.
You're trying to get the court to rule in your favor. They're also gonna be read by your opponents. Your allies. I'll just say a word about that. When we work with ats, which it has been our great privilege to do on amicus briefs, we're always very careful to, to, uh, communicate with the coalition of folks.
Um, looking at, uh, challenging these regulations or defending, uh, clean air act regulations to make sure. Uh, that we're all on the same page in terms of the message and the strategy for winning. Lawyers also are I think, sometimes informed by the notion do no harm. So that's one of the things that we're trying to do with amicus briefs.
We're trying to win the case and present, uh, in coalition with our partners a winning strategy. So this
Gary: question is to both Andy and Nick. Um, we we're talking about amicus briefs for a reason, and that's because the a [00:15:00] TS has recently submitted a couple Amicus briefs and some important challenges to the Clean Air Act.
Um, either pushing regulations forward or pull pulling regulations back. Uh, Nick, Andy, can you walk us through a couple of the more recent cases The a TS has filed Amicus Breach in.
Nick: Sure I can talk about one that we're working with our Harvard colleagues at the Emmett Environmental Law Policy Clinic, um, including Andy.
Um, uh, who leads that group? Um, the one main one is the greenhouse gas endangerment finding. So what does that mean? What is the endangerment finding? And I think the best way to think about this is greenhouse gases are labeled an air pollutant and therefore the EPA is required to regulate them. So it's basically a way of giving the EPA an ability to regulate, um, our greenhouse gases, um, because they're labeled an air pollute.
What does that mean for public health? Well, we know that greenhouse gases cause our [00:16:00] planet to get warmer. A warmer planet means more wildfires, more extreme weather, more hurricanes, uh, more droughts and fluctuations and extreme precipitation. And this all has impacts for our patients. And so we really need a mechanism to help regulate, um, those, those air balloons so we can do something about climate change.
And there's been real world impacts, um, with this greenhouse gas endangerment finding. And I think one clear example is regulating tailpipe emissions from vehicles in the regulatory impact assessment that was published by the EPA for the greenhouse, um, gas. Uh, endangerment finding, they found that this could lead to $2.1 trillion in economic savings over 30 years.
So there's economic benefits and there's also public health benefits. And I think the other way to think about this is doing nothing doesn't feel like the right move. Um, and so this is a way for the EPA really to, to tackle one of our world's pressing issues [00:17:00]
Andy: and anything. What would you like to add?
Well, you know, I think I, of course I agree with everything that, that Nick has, has said. You know, almost a year ago, um, we filed a brief, uh, on behalf of a TS and the Greenhouse Gas Emission Standards for heavy duty vehicles, which I think that brief also sort of really illustrates. The important role that a TS can play in getting information before the court in terms of what these standards mean for public health.
It is, it is labeled a greenhouse gas emission standards for heavy duty vehicles. This is exactly what the administration is in the process of trying to roll back or considering rolling back. And you would think, well, um. The, it sounds like the rule is really focused on greenhouse gases and climate change writ large, but as, as Nick has so eloquently explained, these, these gases have real, really meaningful effects on public health [00:18:00] in the here and now, and I think the briefs that a TS can file.
Makes that point. This isn't just about some abstraction with, um, glaciers melting in Greenland and sea level risings. This is about human health effects in the here and now.
Gary: So Andy, I gotta ask, um, why is an accomplished lawyer like you in an esteemed program like the Harvard Environmental Law and Policy Clinic doing legal work for the a TS Pro Bono?
Andy: Huh? Well, because, because I think, um, the professions of law and medicine have something in common, which is that you can learn a lot in school. But what you really learn, a lot of the craft and, and uh, uh, of your, of your profession, you learn by doing and law clinics like ours, and there are many excellent law clinics across the country.
Give law students the [00:19:00] opportunity to walk out of a giant classroom, uh, where they're listening to a lecture and, and getting grilled in the Socratic method. That's sort of famous part of legal education. And actually sit down and craft briefs that are gonna be filed before courts and craft briefs with the input of you and Nick.
The professionals at a TS. And so this is a long-term gain, I think both for a TS, which gets free labor under our supervision. And, uh, in the, in the long term, you are training up the next set of lawyers who are gonna care about these issues and, uh, are really gonna have benefited from early in their career.
Responding to a client hearing Nick say, I wouldn't frame it that way, or you need to think about what this study is really saying is incredibly valuable. And so this is a, a win-win and [00:20:00] we really appreciate, we're happy to do this for free and we are so grateful that you're willing to trust us to do a good job and help train up the next generation of environmental lawyers.
Gary: Thank you Andy. Um, Nick, can you explain the amicus brief process in collaboration with, um, Andy's group? What it looks like from the a TS side, what is it that you do, what does the a TS contribute to the process?
Nick: Yeah. So one of the things I'll say is that for those that haven't been involved in this work, um, it actually relies on a lot of the skills you already have, um, as a physician and, and a lot of the skills that you've gained through medical school training, through residency training, and if you've gone to fellowship through fellowship training.
And what that primarily is based on is literature view. So what we do is we start with looking at the studies that have been published, ideally in some of the high impact journals. And take that burden of evidence, take all of those different studies and try to. Uh, [00:21:00] pull them together in a way that, um, explains why this policy is important for public health.
So if there's a policy that's mostly looking at particulate matter, pulling out the studies that have shown why particulate matter is bad for respiratory health, bad for cardiovascular health, um, important for, um, uh, reducing for children. Uh, and disadvantaged population. So we pull all of that evidence together and we share it with our colleagues in the, um, different environmental law clinics who then craft amicus brief.
Then after they crafted the amicus brief, we then review it and say, okay, here's where we got the science right? Or here's where the science that we're describing is not quite worded in the way that I would word it. Or maybe we can't be as strong at this recommendation, but maybe here's a study that supports this, uh, viewpoint.
So it's taking all of the information that we know, talking to experts, getting the different studies and pulling it together so that we have the best science in the brief.
Gary: Thank you Nick. [00:22:00] Um, Andy, back to you. Um, we've had the pleasure of working with your, um, clinic a couple times now, including Amicus Brief before the US Supreme Court.
Um, let's zoom out for a moment. Am I right in feeling like every legal question these days goes the Supreme Court? Redraw Congressional district. Let's talk to the Supreme Court, uh, vaccine policy. Let's talk to Supreme Court ICE raids. Um, let's go to the Supreme Court. Uh, is, is this real? Is this healthy?
Is this sustainable?
Andy: Yeah, I, I don't, I mean. I like, maybe I'll start by saying this. I have been an appellate lawyer, including practicing before the Supreme Court for 35 years, and that practice has changed a lot in the time that I've been practicing. Right. Um. There this, um, so-called shadow docket, right?
This emergency docket where important rules [00:23:00] like the good neighbor rule, um, have been stayed by the Supreme Court. This is somewhat unusual. It's new. There's a lot of, um, change in the air. Uh. The legal doctrines that have been in place for a long time that sort of got have guided, uh, environmental law for a long time have been, some of them have been overturned, and so it's a whole new world out there within more and more sort of.
Big matters going to the Supreme Court in a way that they didn't previously. So this is a relatively recent phenomenon. Some of it you can trace back to when the court stayed the Clean Power Plan right in early. Uh uh. Uh, effort. Uh, it seems ear, when I say early, I mean going back to the Obama administration effort to deal with carbon pollution and standards from, from power plants.
Um, so this is a, it is, this is a new world and it's, I don't think it's healthy for, [00:24:00] uh, the court, which it has to, has radically changed the way it has. To operate because it's doing so much emergency work or for litigants, uh, for people who are interested in stability in the law. The law is normally very small, c Conservative.
We operate under precedents and change generally comes slowly and in the law, but. Now change has come more quickly and more and more matters are, are accelerated to the Supreme Court and you know, environmental folks who litigate on behalf of environmental interests, whether that's public health organizations or environmental NGOs, or community groups or indu.
Some businesses and industries are very mindful of the fact that the court seems to be involved earlier and earlier in every major dispute and. We are in the process of adjusting the way that we think about litigation in light of that, those, that facts and that changing [00:25:00] circumstance.
Gary: Thank you Andy. Um, let's zoom back in.
Uh, Nick, I'm a policy wonk. I could talk about this stuff all day 'cause it's kind of cool and fun. Um, but, um, if the A is is successful. How do we draw this back to patient care? What will, um, our work in this space, um, have a real world impact on people living and breathing?
Nick: I'm sure like many others, um, who are healthcare professionals.
It's every single day I'm seeing patients when they bring up, a lot of my patients have asthma when they're bringing up something in their environment that's triggering their asthma. And it can be frustrating to sit there and talk about inhalers or changes in therapy when you know the bigger problem is that it's the wildfire smoke that's triggering their asthma or the extreme heat events that are triggering their asthma or the wildly fluctuating temperatures that we can see now more frequently.[00:26:00]
And to be able to focus on policies that specifically target those problems in our environment, pulls it back to patient care. So when we're sitting with a patient, we're not just talking about changing our inhaler regimens, but also thinking at a bigger scale. How do we do something about these other environmental exposures?
And, um, you know, policy is often the best way to do those things. And, and really a TS and working with our colleagues in the law clinic is. Is one mechanism for achieving that goal.
Gary: So I'm gonna ask you this, uh, both of you, this last question. Um, in our current situation and in the context of a TS legal advocacy in the courts, what does winning look like?
Um, Nick, I'm gonna turn over, uh, for you to respond first.
Nick: So I'll answer in two ways. First, I think it's helping people understand how important these potentially obscure [00:27:00] agencies can be for protecting human health. The EPA, OSHA CD, C, these are ones that I mentioned earlier. These are really important federal agencies that have done so much to, to promote public health and a lot of the regulations and policies that they've implemented have, have benefited all of us.
I think my second answer is that having a cleaner world is just better. Um, it's our health is better. Clean cars, electric cars are just more fun to drive. Um, and, and our homes aren't threatened by extreme weather events, so I think a cleaner world is just a better world, and I think a lot of us could actually agree on that.
Gary: Andy over to you. Can you top that?
Andy: No, I mean, I, of course, I, I, I, uh, plus one everything that Nick has just said, and I think that the work that a TS and your members, uh, and, and Nick are doing are so important to educating the public to, to [00:28:00] what's going on. Every time a physician talks to a patient about what is triggering these.
These health problems. And, uh, and every time we file a brief that has the benefit of educating the court about these connections, I think is really important. I think, you know, it's also important to just, um, uh, keep, keep fighting. Fighting in a strategic way, right? And making good decisions. But I'll just say that.
Um, some colleagues, some folks that we've worked with in the clinic from Sierra Club just won a, a big win in a Clean Air Act case in the Sixth Circuit Court of Appeals having to do with Detroit's ozone, uh, state implementation plan. And, and so victories are possible, uh, but you'll only win. When you're, when you're in the fight.
And, uh, so we have a duty to educate the public and to educate the courts and to, um, keep pressing on these things. The congress that enacted the Clean Air Act [00:29:00] in 1970, I think would be appalled by what the administration is doing today, and I think most Americans would be appalled, um, uh, once they come to understand like how important these agencies.
And I really appreciate Nick, uh, mentioning osha. Our, our labor agencies, uh, the Environmental Protection Agency has environment in its name, but it's really a public health agency. And, uh, I think we need to be thinking of it in that way. Hopefully that would sway some folks who, uh, to, to understand the, the critical importance, uh, of, of the work of the agency and ATS is, is really important in driving that, those messages home.
Gary: Nick, Andy, thank you both for participating in today's Breathe Easy podcast. And more importantly, thank you for the work you're doing in the courts and in the clinics to preserve and improve air quality in the us. Any listeners who are interested in learning more about the a TS work or wanna get involved in the a [00:30:00] TS advocacy work?
Please send me an email at ge WAR t@thoracic.org. And to our listeners, thank you for joining us today for this ATS Breathe Easy podcast.
non: Thank you for joining us today. To learn more, visit our website@thoracic.org. Find more a TS Breathe Easy podcasts on transistor, YouTube, apple podcasts, and Spotify. Don't forget to like, comment, and subscribe, so you never miss a show.