Dean's COVID-19 Commentary

Last week, I was optimistic that Colorado’s COVID-19 epidemic curve was bending. In actuality, it has stopped rising and is drifting along a plateau with just over 300 Coloradans hospitalized. Test positivity is similarly stalled at about 12%. The rise of the BA.4 and BA.5 subvariants is likely contributing to the stalled decline, as they are increasing in frequency in Colorado. Evidence remains limited on their characteristics, but there is an indication of increased immune escape versus earlier Omicron variants. Reverting to 2019 behavior and increased travel are also likely contributors to the current epidemiological course of the pandemic. 

I am just back from a trip to Scotland to attend a wedding and to hike the West Highland Way. My first brush with having COVID-19 is a result. A “scratchy” throat became an upper respiratory tract infection by the end of the return flight from Europe to Denver and a rapid antigen test on arrival was positive. The wedding events began with the perfect circumstances for a superspreader event: a crowded gathering in a poorly ventilated and noisy pub with people speaking loudly. Lacking a formal outbreak investigation, anecdotal reports point to a high attack rate among guests. The wedding took place when the prevalence of infection in Scotland was estimated as 1 in 18, based on household survey data. The rise in Scotland has also been attributed to the BA.4 and BA.5 subvariants.  

The Supreme Court released yet another decision with profound public health implications last week: WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL. The decision has broad implications for the steps that the Environmental Protection Agency (EPA) can take by itself to reduce greenhouse gas emissions under the Clean Air Act. As helpful background, I cite the court’s decision in FOOD AND DRUG ADMINISTRATION ET AL. v. BROWN & WILLIAMSON TOBACCO CORP. ET AL. In that 2000 decision, the Supreme Court upheld a lower court’s decision that the Food and Drug Administration (FDA) did not have authority to regulate tobacco products under the Food, Drug, and Cosmetics Act (FDCA). The majority opined that: “Reading the FDCA as a whole, as well as in conjunction with Congress' subsequent tobacco-specific legislation, it is plain that Congress has not given the FDA the authority to regulate tobacco products as customarily marketed.” The Family Smoking Prevention and Tobacco Control Act, passed in 2009, gave FDA the authority to regulate tobacco products, filling the gap in the FDCA.

In the West Virginia et al. decision, the finding is similar in concept to that of the Brown & Williamson decision. The Court finds that the EPA’s Clean Power Plant rule exceeded its authority under Section 111 of the Clean Air Act, which addresses New Source Performance Standards and also existing sources under Section 111(d). In the Clean Power Plant rule, EPA used Section 111(d) to support a three-level strategy that would lead to a change in the “system” for power generation: a shift over time from power generation by coal and natural gas combustion to renewable sources, e.g., wind, and solar power generation. This strategy reflected the EPA’s “best system of emission reduction,” defined for new sources, for the action taken under its interpretation of Section 111(d), applicable to existing sources. The majority find that the EPA’s interpretation of its authority under Section 111(d) exceeds the intent of Congress, casting the case as a “major questions case,” i.e., one with broad consequences and for which Congressional delegation of authority is needed. On this point, the parallel to the Brown & Williamson decision is clear and its precedent-based arguments are understandable. 

However, continuing with the Brown & Williamson analogy, cohesive action by Congress on climate change, like that leading to the Family Smoking Prevention and Tobacco Control Act, seems unlikely at present. The EPA is left with a severely limited toolbox for addressing climate change and the prospect that future rules to limit greenhouse gas emissions will not be possible following West Virginia et al.  Justice Kagan’s dissenting opinion should be read. She disagrees with the majority opinion on the interpretation of Section 111(d) and speaks to its consequences. Here is the last paragraph of her minority opinion:

“The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb powerplants’ carbon dioxide emissions. 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. Respectfully, I dissent.”

Interpreting Justice Kagan’s opinion, the court’s decision is agnostic as to its consequences. The West Virginia et al. decision has broad implications for the actions taken by regulatory agencies, including those related to public health. Responses to public health emergencies typically require rapid actions and reliance on precedents and existing statutes, which may not extend directly to emerging threats, e.g., the COVID-19 pandemic. We have already seen other actions by the Supreme Court that limited public health actions: ending the CDC’s eviction moratorium and blocking the Occupational Safety and Health Administration’s (OSHA) COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402. This editorial in the New York Times provides a useful perspective on the wider implications of the West Virginia et al. decision. We are left with the perhaps futile hope that a fractured and dysfunctional Congress will address climate change.   

Stay well and remember that it is 2022, not 2019. 

Jonathan Samet, MD, MS
Dean, Colorado School of Public Health