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Oh no, this Sec. 1881A thing is spreading. https://twitter.com/RoKhanna/status/1334505483302998017
Declaring a "public health emergency" under CERCLA for COVID-19 is the kind of legislative stretch that the Supreme Court will strike down 9-0 and give Kavanaugh the opportunity to enact the major-question doctrine.
For context, #1 is the emergency declaration power in § 1881A of the Social Security Act, and #2 is the relevant piece of CERCLA, AKA the Superfund statute.
Public health emergencies under CERCLA very clearly refer to the kinds of pollutants regulated under CERCLA, which does not include airborne infectious disease.
And look at § 104(a)(3)(A) here. That, by my reading, pretty explicitly *limits* presidential response to naturally occurring contaminants like a plague.
This isn't to say that Biden couldn't use SSA § 1881A a lot more aggressively. CERLCA § 104 would pretty clearly allow for declarations of emergency covering large swaths of coal-mining Appalachia and places like Flint, MI. You could give everyone in Flint Medicare!
You could also use this as part of a GND plan to provide immediate benefits in areas where fossil fuel extraction has caused a lot of pollution. But like, we can't use it for COVID, and I worry that if we tried, it would blow up being able to use it at all.
Anyway, that's my statutory interpretation handwringing for this morning, I should probably get back to studying for environmental law.
