The recent Supreme Court decision in the case known as West Virginia v. Environmental Protection
Agency weakened the EPA’s ability to regulate carbon emissions from power plants. At the heart of this
ruling is the capacity of the U.S. federal government to regulate the release of substances that can be
harmful to American people.
The EPA had been using the Clean Air Act to assist utilities and power companies in the transition from
fossil fuel–based electricity generation to less carbon-intensive sources, such as wind or solar power.
The burning of fossil fuels like coal, oil and natural gas harms human health directly through the
inhalation of microscopic particulate matter into the lungs and indirectly through climate change.
We can measure the public health effect of carbon pollution through something called the mortality
cost. The mortality cost of carbon estimates how many tons of carbon must be emitted into the
atmosphere to cause one death that would otherwise not have occurred. It is calculated by using a
climate model and analyzing the impact of carbon emissions overtime on human mortality. The
mortality cost can be used to quantitatively consider the impact of carbon emitting choices upon human
life.
For every 4,434 tons of carbon dioxide emitted, one additional death is predicted. Using U.S. Energy
Information Agency data for carbon emissions from coal-generated electricity in the U.S., I have
calculated that 200,000 lives will be lost for each year the U.S. continues to use coal instead of a noncarbon dioxide emitting alternative to generate electricity.
As an intensive care doctor, I may spend weeks focused on saving a single life. The opportunity to save
200,000 lives each year is so incredibly precious; it would be like preventing all deaths from Alzheimer’s
disease and influenza in the U.S. for an entire year. The Supreme Court could have made a tremendously
positive impact on human health, but in this case, the majority did the opposite.
Since it seems to me that the Supreme Court has narrowed the scope of the federal government’s ability
to protect its citizens’ health , then it is incumbent upon clinicians to speak up on behalf of our patients.
As we have done with the public health crises of tobacco and opioid misuse, clinicians should take a
more prominent role in the public health crises that climate change portends and pollution creates right
now. Clinicians have powerful voices, as well as the science and evidence to back up their claims. These
voices can rise above the din of marketing, lobbying and shareholder profits to speak for the young, the
sick and the poor, whose lives will be harmed by climate change first.
The combustion of fossil fuels like coal, gas and diesel creates fine particulate matter (we classify these
particles by size: PM2.5 and PM10), which, once airborne, can be inhaled into our lungs. The larger
particles (PM10) generally get lodged in the upper airway resulting in inflammation and irritation, which
can lead to COPD and asthma exacerbations. The smaller particles (PM2.5) can be drawn into the lower
airways and even absorbed into the bloodstream. PM2.5 exposure is associated with increased rates of
many different diseases including heart attacks, heart failure, strokes, blood clots, lung cancer and
Parkinson’s. Inhaling fossil fuel emissions contributes to 10 million premature deaths each year
worldwide.
Fossil fuel combustion further harms human life through its contribution to climate change. Climate
change is associated with pathology affecting most organ systems, mental health and even the wellbeing of newborns. Applying the mortality cost of carbon to the 33 billion tons of carbon dioxide
emitted each year from oil, natural gas and coal yields 7.4 million deaths.
The fossil fuel industry has been aware of the connection between fossil fuel emissions and harm to
global public health since the 1960s. In the 1990s, industry sought to delegitimize climate science and
created the “Global Climate Science Team” with the intention of undermining climate-focused
regulatory efforts. Notably, the messages disseminated by the “Global Climate Science Team” were in
direct contradiction to actual global climate scientists’ at that time and today.
The efforts of the fossil fuel industry were so successful at stigmatizing the public health crisis of climate
change in the United States, that the words “climate change” were eliminated from certain federal
documentation. The residual impacts are still present: despite climate change being identified in over
200 medical journals as the most pressing global public health crisis of this century, only $23 million
(0.05 percent of the total National Institutes of Health budget) was allocated to research the effects of
climate change on health in 2021.
West Virginia is the second-leading producer of coal in the U.S. and employs around 11,000 coal miners.
The Supreme Courtdecision will almost certainly prolong the usage of coal for electricity production in
the U.S., which in turn will prolong coal mining. Mining is associated with asthma-related
hospitalizations. By choosing coal, the justices in the majority have chosen against the nation-leading
12.4 percent (175,011) of adult West Virginians who have asthma.
newsletter promo
Sign up for Scientific American’s free newsletters.
Sign Up
I take care of patients from West Virginia, and for an anesthesiologist, asthma and asthma-related
complications can turn a routine procedure into a risky one. As a physician, I will not stand idle as my
patients suffer from fossil fuel combustion. Fossil fuel emissions need to be reduced to the least amount
necessary. While I am disappointed by the Supreme Court’s decision to undermine the executive
branch’s ability to protect public health, the movement to minimize fossil fuel emissions must continue.
Today, it is possible to link approximately 17 million deaths to fossil fuel emissions each year. This is 25
percent of global deaths. The harm from climate change is expected to accelerate in the next decade if
there is not a marked reduction in emissions.
The damage from the fossil fuel industry prioritizing profits above human life will exist long after the
mea culpashave been made and the courts have adjudicated. Clinicians, in defense of our future
patients’ lives, need to proactively address the misinformation and empower patients, citizens,
politicians and judges to focus on the most unalienable of human rights: the right to live a healthy life.
The Supreme Court’s Latest Decision Is a Blow to Stopping Climate Change
By deciding in favor of fossil-fuel interests and limited regulatory authority, the Court has hampered the
EPA’s ability to mitigate power-plant carbon pollution
By Rachel Cleetus on June 30, 2022
The Supreme Court's Latest Decision Is a Blow to Stopping Climate Change
Credit: shaunl/Getty Images
The Supreme Court’s decision in the case known as West Virginia et al. v. Environmental Protection
Agency et al. is a serious blow to the EPA’s ability to fight climate change—and could have dangerous
repercussions beyond this case. The timing of the decision feels especially harsh, as the nation is in the
throes of the “Danger Season” for hazards such as heat waves, drought, wildfires and hurricanes, all
worsened by climate change.
The majority 6–3 decision sharply curtails the EPA’s authority to set standards based on a broad range of
flexible options to cut carbon emissions from the power sector—options such as replacing polluting
fossil fuels with cheap and widely available wind and solar power coupled with battery storage. Instead,
the Court has ruled that, though the agency can still regulate carbon emissions, it must do so narrowly
and set standards solely based on options available at individual power plant facilities, such as efficiency
measures to improve plant-level heat rates.
This decision wrongfully precludes the agency’s authority to set robust power plant carbon pollution
standards in line with today’s technologies and practices adopted on a sector-wide basis. In fact, utilities
are increasingly turning to these options—although not fast enough—and many had weighed in in
support of EPA power plant carbon standards. The limited approach permitted by the court ruling will
constrain the ability to drive the major cuts in emissions that are necessary to meet climate goals. Had
the court ruled fully in favor of the EPA—or not taken the case at all—a much more meaningful dent in
power plant carbon emissions would be within reach, while also delivering much greater reductions in
other dangerous co-pollutants from burning fossil fuels such as particulate matter, mercury, nitrogen
oxides and sulfur dioxide.
The petitioners who brought this case include state-level political officials and coal companies who are
single-mindedly determined to block climate action and perpetuate fossil fuel dependence to serve their
narrow political or business interests. And as I wrote previously, there are strong grounds to argue that
this case should never have been taken up by the Supreme Court in the first place because there is no
rule on the books to challenge. Given the expressed deep skepticism of this Court’s majority for the
authority and expertise of federal agencies, today’s decision is not surprising but it is deeply troubling
nevertheless.
After years of setbacks and delays to implementing EPA power plant carbon standards, and at a time
when the climate crisis is so clearly unfolding all around us, this decision flies in the face of the urgent
need for deep cuts in heat-trapping emissions to protect public health and the environment. Power
plants are the second-largest source of U.S. carbon emissions today. Decarbonizing the power sector is
also a linchpin of economy-wide efforts to cut emissions, through electrification of energy use for
transportation, industrial purposes and in residential and commercial buildings. While clean energy
progress is definitely underway, it is not happening fast enough or on the scale necessary to limit the
threat from climate change.
The West Virginia v. EPA decision is also harmful in a broader sense because it goes to the heart of
federal agencies’ abilities to interpret existing laws based on the best available science, and to then set
robust standards accordingly. Once Congress passes protective laws like the Clean Air Act, agencies have
generally had deference to implement those laws based on the latest scientific evidence of harms
caused by pollutants and options to limit those harms. With this decision, the Court has instead
hamstrung that authority. This deeply concerning precedent could potentially put other important
environmental and public health policies at risk too. This development has come about as part of a
decades-long well-funded and coordinated strategy by industry interests and their political allies aimed
at protecting polluters and undermining public health safeguards.
The Supreme Court’s decision is out of step with legal precedent because prior court rulings have given
deference to agency expertise in interpreting and implementing laws passed by Congress. It is also
contrary to what the latest science shows is necessary and does not reflect the full potential to reduce
heat-trapping emissions from the power sector using widely available and cost-effective technologies.
As Justice Elena Kagan notes in the dissenting opinion, “Whatever else this Court may know about, it
does not have a clue about how to address climate change.... The Court appoints itself—instead of
Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things
more frightening.”
Despite this deeply harmful and ideologically motivated ruling, the EPA’s authority and responsibility to
curtail heat-trapping emissions still stands. The EPA must now act promptly to propose and finalize as
robust a set of power plant carbon standards as possible within the scope it has.
Congress, too, must act quickly to pass the months-long stalled budget reconciliation bill—with critical
climate and energy components. That legislation must include tax credits to help advance renewable
energy and electric vehicles; investments that will help communities become more resilient to climate
change, especially low-income communities and communities of color that bear a disproportionate
brunt of impacts; and strong labor and environmental justice provisions. Companies must also step up
and do their part—net zero pledges on distant timelines mean little without concrete actions to make
deep, absolute near-term cuts in emissions. The country needs a strong suite of policies at the federal,
state and local level, across every sector of the economy, to deliver on its commitment to cut its heattrapping emissions 50 to 52 percent below 2005 levels by 2030. Every hindrance, every delay, is deeply
problematic given the urgency highlighted by the latest science.
With this decision, this Supreme Court has willfully made it much more difficult to make meaningful
progress on climate change. Meanwhile global carbon emissions continue to rise at an alarming rate,
sharply rebounding from the brief dip during the first year of the COVID-19 pandemic. Atmospheric
concentrations of heat-trapping emissions are on a relentless upward trajectory, as is the increase in
global average temperatures. There is no time to waste. As the Intergovernmental Panel on Climate
Change stated in its recent report, “Any further delay in concerted anticipatory global action on
adaptation and mitigation will miss a brief and rapidly closing window of opportunity to secure a livable
and sustainable future for all.”
Unlike the Court’s ultraconservative majority, most people in the U.S. recognize the harm being wrought
by climate change and want strong policies to address it. This decision is a warning that going forward,
securing desperately needed progress on urgent priorities such as climate change will require an
engaged and informed electorate and the protection of elections and voting rights. Rooting out the
fossil fuel industry’s corrupting influence on our democracy is also vital. We must hold our policy
makers’ feet to the fire and be willing to speak up in every venue—from corporate shareholder
meetings to public utility commission hearings—where decisions about the future of our planet are
being made.
Who Is Liable when AI Kills?
We need to change rules and institutions while still promoting innovation to protect people from faulty
AI
By George Maliha, Ravi B. Parikh on June 29, 2022
Who Is Liable when AI Kills?
Credit: Sergeii Aremenko/Science Photo Library/ Getty Images
Who is responsible when AI harms someone?
A California jury may soon have to decide. In December 2019, a person driving a Tesla with an artificial
intelligence driving system killed two people in Gardena in an accident. The Tesla driver faces several
years in prison. In light of this and other incidents, both the National Highway Transportation Safety
Administration (NHTSA) and National Transportation Safety Board are investigating Tesla crashes, and
NHTSA has recently broadened its probe to explore how drivers interact with Tesla systems. On the
state front, California is considering curtailing the use of Tesla autonomous driving features.
Our current liability system—our system to determine responsibility and payment for injuries—is
completely unprepared for AI. Liability rules were designed for a time when humans caused the majority
of mistakes or injuries. Thus, most liability frameworks place punishments on the end-user doctor, driver
or other human who caused an injury. But with AI, errors may occur without any human input at all. The
liability system needs to adjust accordingly. Bad liability policy will harm patients, consumers and AI
developers.
The time to think about liability is now—right as AI becomes ubiquitous but remains underregulated.
Already, AI-based systems have contributed to injury. In 2018, a pedestrian was killed by a self-driving
Uber vehicle. Although driver error was at issue, the AI failed to detect the pedestrian. Recently, an AIbased mental health chatbot encouraged a simulated suicidal patient to take her own life. AI algorithms
have discriminated against the resumes of female applicants. And, in one particularly dramatic case, an
AI algorithm misidentified a suspect in an aggravated assault, leading to a mistaken arrest. Yet, despite
missteps, AI promises to revolutionize all of these areas.
Getting the liability landscape right is essential to unlocking AI’s potential. Uncertain rules and
potentially costly litigation will discourage investment in, and development and adoption of, AI systems.
The wider adoption of AI in health care, autonomous vehicles and in other industries depends on the
framework that determines who, if anyone, ends up liable for an injury caused by artificial intelligence
systems.
AI challenges traditional liability. For example, how do we assign liability when a “black box” algorithm—
where the identity and weighting of variables changes dynamically so no one knows what goes into the
prediction—recommends a treatment that ultimately causes harm, or drives a car recklessly before its
human driver can react? Is that really the doctor or driver’s fault? Is it the company that created the AI’s
fault? And what accountability should everyone else—health systems, insurers, manufacturers,
regulators—face if they encouraged adoption? These are unanswered questions, and critical to
establishing the responsible use of AI in consumer products.
Like all disruptive technologies, AI is powerful. AI algorithms, if properly created and tested, can aid in
diagnosis, market research, predictive analytics and any application that requires analyzing large data
sets. A recent McKinsey global survey showed that already over half of companies worldwide reported
using AI in their routine operations.
Yet, liability too often focuses on the easiest target: the end-user who uses the algorithm. Liability
inquiries often start—and end—with the driver of the car that crashed or the physician that gave faulty
treatment decision.
Granted, if the end-user misuses an AI system or ignores its warnings, he or she should be liable. But AI
errors are often not the fault of the end-user. Who can fault an emergency room physician for an AI
algorithm that misses papilledema—a swelling of the retina? An AI’s failure to detect the condition
could delay care and potentially cause a patient to go blind. Yet, papilledema is challenging to diagnose
without an ophthalmologist’s examination because more clinical data, including imaging of the brain
and visual acuity, are often necessary as part of the workup. Despite AI’s revolutionary potential across
industries, end-users will avoid using AI if they bear sole liability for potentially fatal errors.
Shifting the blame solely to AI designers or adopters doesn’t solve the issue either. Of course, the
designers created the algorithm in question. But is every Tesla accident Tesla’s fault to be solved by
more testing before product launch? Indeed, some AI algorithms constantly self-learn, taking their
inputs and dynamically using them to change the outputs. No one can be sure of exactly how an AI
algorithm arrived at a particular conclusion.
The key is to ensure that all stakeholders—users, developers and everyone else along the chain from
product development to use—bear enough liability to ensure AI safety and effectiveness—but not so
much that they give up on AI.
To protect people from faulty AI while still promoting innovation, we propose three ways to revamp
traditional liability frameworks.
First, insurers must protect policyholders from the excessive costs of being sued over an AI injury by
testing and validating new AI algorithms prior to use, just as car insurers have been comparing and
testing automobiles for years. An independent safety system can provide AI stakeholders with a
predictable liability system that adjusts to new technologies and methods.
Second, some AI errors should be litigated in special courts with expertise adjudicating AI cases. These
specialized tribunals could develop an expertise in particular technologies or issues, such as dealing with
the interaction of two AI systems (say, two autonomous vehicles that crash into each other). Such
specialized courts are not new: for example, in the U.S., specialist courts have protected childhood
vaccine manufacturers for decades by adjudicating vaccine injuries and developing a deep knowledge of
the field.
Third, regulatory standards from federal authorities like the U.S. Food and Drug Administration (FDA) or
NHTSA could offset excess liability for developers and some end-users. For example, federal regulations
and legislation have replaced certain forms of liability for medical devices or pesticides. Regulators
should deem some AIs too risky to introduce into the market without standards for testing, retesting or
validation. Federal regulators ought to proactively focus on standard processes for AI development. This
would allow regulatory agencies to remain nimble and prevent AI-related injuries, rather than reacting
to them too late. In contrast, although state and local consumer protection and health agencies could
not erect a national regulatory system, they could help clarify industry standards and norms in a
particular area.
Hampering AI with an outdated liability system would be tragic: Self-driving cars will bring mobility to
many people who lack transportation access. In health care, AI will help physicians choose more
effective treatments, improve patient outcomes and even cut costs in an industry notorious for
overspending. Industries ranging from finance to cybersecurity are on the cusp of AI revolutions that
could benefit billions worldwide. But these benefits should not be undercut by poorly developed
algorithms. Thus, 21st-century AI demands a 21st-century liability system.
This is an opinion and analysis article, and the views expressed by the author or authors are not
necessarily those of Scientific American.