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In most American cities, particularly in the suburbs, that’s not the case. And when the efficient movement of cars is considered paramount over the safety of any other mode, accidents and fatalities occur. The car- centric transportation system is contributing to a consistent yearly uptick in pedestrian casualties; they rose 21 percent in 2020, according to the Governors Highway Safety Association (GHSA).

“The problem is, the minute you leave the local [road], you probably enter an environment in which it’s not safe to bike because the bike lanes aren’t separate,” Speck said.

By adding protected bike lines — separated from car lanes by a barrier for safety — biking becomes a safe, accessible alternative to shorter drives. Essentially, bike lanes have to be set apart by something other than “a scrap of paint,” said Ralph Buehler, the chair of Urban Affairs and Planning at Virginia Tech. This is something that became clear during the first year of the pandemic: the GHSA found that 2020’s uptick in pedestrian deaths came despite traffic decreasing by up to about 42 percent at the peak of the pandemic. Reducing traffic alone doesn’t make biking and walking safer; the streets themselves need to be redesigned with safety in mind.

This sort of redesign also incentivizes walking and biking. Speck’s research has found converting 12- to 14-foot-wide driving lanes into 10-foot-wide lanes slows average car speeds from 40 miles per hour to 25 miles per hour and creates room to either add bike lanes or street-side parallel parking, which better protects the sidewalk from traffic.

And relatively inexpensive changes like turning one-way streets into two-way streets or lowering the curb radius so that cars slow down more when they make right turns are also proven to reduce crashes and injuries, Speck said.

Studies conducted in cities that have made such changes have found marked decreases in car use. Oslo has redesigned its roads in high pedestrian traffic areas, such that 91 percent have speed limits under 40 miles per hour, while expanding its system of bike lanes. It saw a 77 percent increase in bike traffic between 2014 and 2020.

There are American examples too. In Philadelphia, an investment in miles of protected bike lanes led to a nearly 70 percent increase in the number of people who biked to work from 2010 to 2017, even as congestion and public transit use worsened.

Buehler added that for such changes to be successful, there also needs to be connectivity across areas. If you’re taking a shorter trip to pick up takeout or grab a few groceries, much of it may be bike- or pedestrian-friendly — except for a critical highway juncture. To promote walking and biking, cities need to ensure that routes exist for human-powered transportation to every place the average person needs to go.

When I lived in Madrid, I could walk or take transit practically everywhere without ever crossing a highway that had no pedestrian infrastructure. I would take 30-minute walks home in the middle of the night from clubs, when the Metro was not running. Even in the dark, there were no crossings where I was unprotected as a pedestrian.

Examples of similar connectivity can also be found in the US, Buehler said, most commonly with respect to schools.

“There’s a safe-route-to-school program that tries to design safe routes to school,” Buehler said. “You can also think about that to community centers. The main point is designing networks.”

Safe routes to school are a start, but to really promote biking and walking, cities need to develop safe routes to other places, like drugstores and restaurants, as well. There’s a very large obstacle to doing this at the moment, however: zoning.

End single-family zoning to encourage mixed-use development

On its face, single-family zoning is a housing policy that creates quiet, uncrowded neighborhoods by restricting the development of apartments, townhouses, or any other dwelling that’s not a freestanding home. It’s incredibly prevalent in the US (75 percent of residential land is single-family zoned), and, as my colleague Jerusalem Demsas points out, it is incredibly harmful. It has had a racist impact, having been used to exclude people of color from certain neighborhoods, and it overall increases the cost of housing by limiting supply.

Another problem with single-family zoning is that it encourages car usage: In areas zoned for single families, there can be little development; the idea is people live in one area and then access workplaces, leisure activities, and stores via car.

“We zoned and created bento boxes,” said Brian Jencek, the director of planning at HOK, a planning and design firm. “Never let the gravy and rice touch. … Now we want stew, but we have to undo over a century of American planning.”

The best way to make that stew is to create mixed-use development, which facilitates what Jencek calls the 20-minute city, meaning you’re never more than a 20-minute walk from everything you might need, from jobs and schools to pharmacies and clinics to community centers and parks. In a mixed-use city, that’s possible. But in most American suburbs, single-family zoning does not allow for it.

Going back to my Madrid example, mixed-use development meant that nearly everything was within walking distance. From my neighborhood, I could walk to school, stop at a bakery along the way, get any beauty services at a salon on the way home, and meet my friends for dinner at night. I walked or took public transit everywhere.

Compare that to my grandparents’ house, in West Bloomfield, Michigan, a suburb of Detroit. Due to single-family zoning, the only activity we can walk to is to see my cousins who also live in the suburb. Any restaurant, appointment, or shopping has to be a car trip.

Razing West Bloomfield and rebuilding it as a 20-minute city isn’t really feasible. But one change that could encourage the development of walkable cities over time, Speck said, is eliminating single-family zoning in areas that are within walking distance of transit stops. Doing so would encourage the development of commercial spaces, which would benefit residents in the area; and those not living near the new services would be able to access them via public transit, lessening the need for a car.

Upzoning near transit also means that homeowners could add accessory dwelling units, or granny flats — a detached housing unit — on a lot, Speck said, helping to situate middle- and low-income people near transit, easing the housing crisis and putting more people in walkable and transit-accessible communities.

While increased development is often associated with rising property values and gentrification, Jencek said mixed-use development, done with community input, can create the economic benefits of development without pricing people out. The end result of rezoning would look different in different neighborhoods but does not necessarily mean a complete overhaul of a community. It could just mean adding a one-acre community park to a neighborhood without recreation access or creating a network of safer, slower streets to invite restaurants to expand their outdoor seating.

The idea is simple: Add a new land use to a neighborhood, creating an activity or business site that is accessible without a car.

Make drivers pay the costs of driving

The first two solutions focused on making driving less necessary. But people don’t always drive because they need to — they often do so because it is convenient and cheap.

It’s true that the upfront cost of a car is high, and there is gas and insurance. But drivers’ other costs — road maintenance, traffic lights, and policing, for instance — are heavily subsidized. Speck said estimates place the subsidization of driving at $10 for every dollar a driver spends as opposed to $1.50 for public transit.

Much of that subsidization comes in the form of taxes, which people pay whether they drive or not, but there are a lot of indirect costs as well: In higher-income households, people use highways but do not have to pay for the noise and emissions in the low-income neighborhoods that highways run through, for example. And the climate costs of mass driving affect everyone, regardless of car ownership.

One solution to this is congestion pricing, where drivers must pay a fee to drive in high-traffic areas or during peak hours. Central London imposes congestion pricing, and New York City has plans to do so, though they may not materialize. Another idea is to increase the gas tax, so that actual drivers are paying the costs of car infrastructure rather than general taxation. Both of these price controls could disincentivize driving.

But many experts believe making driving less convenient would do more to limit car usage, and one easy way to do this is to reduce the supply of parking.

Every mode of transportation needs a terminal. Planes have airports and boats have seaports, both of which require travelers and companies to pay. But for cars, parking “is capitalized into the costs of the goods you buy,” Brian Taylor, the director of the Institute of Transportation Studies at the University of California, Los Angeles, said. Think about your local grocery store — the parking lot is often larger than the actual commercial space, and it’s free. The grocery store is expected to pay for the parking lot through the revenue it generates from sales.

“We treat that as sacrosanct,” Taylor said. “The default is that the storage of private vehicles tends to get priority if you look at how we’ve allocated curb space. And that creates all sorts of problems.”

Delivery vehicles and rideshares that need to pull up on the curb have no space, so they halt traffic. Traffic is generated by people circling and looking for parking, knowing they can park on the street for free instead of paying for a garage. And because city governments mandate parking requirements for most types of development, commercial development — and therefore connectivity — is stunted by the need for parking.

Most American cities require parking minimums, meaning new apartment buildings and developments have to cordon off a certain amount of space for people to leave their car, either for free or for a rate much lower than the market price, considering how valuable that space is.

If cities removed their minimum parking requirements for developers, there would be far less incentive to provide free parking. A private developer would likely still build some off-street parking — but they would charge for it.

In Los Angeles, for example, Taylor said the real cost of an underground parking space might be $60,000. So a condo that costs $520,000, and comes with two underground parking spaces, could instead be sold at $360,000, with owners offering parking at its real cost of $60,000 per space. In that scenario, a family might forgo a second car and get an electric bike instead.

To disincentivize street parking, Taylor suggested municipalities raise the price at meters, manage curbs differently, or remove parking altogether in some areas and only allow loading, unloading, and scooter and bike traffic.

These are all strategies that would need to be rolled out in tandem with expanding connectivity, particularly with public transit. It is easy to imagine a situation in which gas taxes and expensive meters begin to primarily hurt low-income communities with zero access to public transportation, for instance. But once other options are in place, imposing the costs of parking on drivers would make driving more like going to a restaurant for dinner, Taylor said: You don’t do it every night, but it’s enjoyable when you do.

“If people were more responsible, in one way or another, for those costs, they’d be much more judicious of their use,” Taylor said. “Instead of being the default of every trip, it would be one among an array of choices that have advantages and disadvantages.”

What’s in the way of reducing car usage?

The free market did not create car supremacy by itself, though the government played a big role. The government has the power to change how city-dwelling Americans use their cars, but doing so on the scale needed to truly combat climate change isn’t easy.

City planners contend with regulations that promote driving, and politicians who want to change those are often met with pushback from constituents. In overcoming this, it’s important to remember that not every change needs to be a grand one — yes, a gas tax hike might help but so will more popular measures like bike lanes. And incremental advances, like new zoning regulations rolled out a few neighborhoods at a time, for instance, could have a large impact in the long run.

Also, a multimodal city does not mean cars will be obsolete. Some trips, like to a hardware store, will always necessitate vehicles, and there’s a role for ridesharing as well. But policies are needed to ensure other modes receive a fair shot. It’ll make us safer, maybe happier, and will give our planet a better chance of survival.

Americans are still lagging behind other wealthy countries in vaccine uptake, and only 52.76 percent of eligible Americans are fully vaccinated, according to the New York Times. Only about 700,000 vaccine doses are being administered each day in the US — about 300,000 fewer than Japan’s vaccination program is currently reporting, despite Japan’s smaller population.

Currently, the US is averaging nearly 146,000 new Covid-19 cases per day, compared to less than 12,000 new cases per day at points in June this year. At the pandemic’s peak this winter, the country was reporting more than 250,000 cases per day on average.

But a new movement toward stricter vaccine requirements coincides with a seven percent decrease in daily reported Covid-19 cases over the past two weeks, according to the New York Times. Testing is also up 21 percent over the same period, with an average of more than 1.6 million tests being administered per day.

Deaths, however — which tend to lag spikes in new cases — are currently increasing in the US. As of Friday, the country was averaging more than 1,600 deaths per day from the virus.

While this last statistic is grim, however, there are signs that the delta-fueled surge in cases over the summer is at least leveling off as more people get vaccinated.

Cases in Mississippi, where the virus has strained hospital capacity to beyond its limits, are down by a third over the past two weeks. In Tennessee, which currently has the most cases per capita of any state, the vaccination rate increased by 47 percent from July 12 to August 2, and the rate at which infections are increasing in the state has started to slow.

“Our patience is wearing thin”

As the US continues to struggle with Covid-19, President Joe Biden on Thursday announced that all businesses with more than 100 employees must require either vaccination or weekly Covid-19 testing.

“Many of us are frustrated with the nearly 80 million Americans who are still not vaccinated, even though the vaccine is safe, effective, and free,” Biden said at a press conference on Thursday, decrying what he referred to as the “pandemic politics” of Republican leaders who have downplayed Covid-19, spread disinformation, and fought against measures like inoculation and mask-wearing.

“We cannot allow these actions to stand in the way of protecting the large majority of Americans who have done their part and want to get back to life as normal,” Biden said.

Corporate America is also warming to vaccine mandates, with major companies like United Airlines and Tyson Foods implementing vaccine requirements for their workers. United set a deadline of September 27 for all of its US-based employees to be vaccinated, and it says that more than half of its previously unvaccinated employees have now been vaccinated, according to NPR.

Pediatric Covid-19 cases are on the rise

Despite the significant protection afforded by vaccines, however, not everyone is eligible yet. The Food and Drug Administration has yet to authorize a Covid-19 vaccine for children younger than 12, and pediatric Covid-19 cases are surging as children head back to in-person schooling — particularly in states that have rebuffed mask mandates.

New York City public schools, the largest school system in the country, will test its own Covid-19 policies on Monday as the school year begins. All employees of New York City’s Department of Education are required to be fully vaccinated by September 27.

That’s also the case in Los Angeles, which on Thursday became the first major public school district in the US to mandate Covid-19 vaccines for all eligible students as well as for teachers after an unanimous vote by the school board.

In Florida, where Gov. Ron DeSantis is currently fighting to prevent districts from requiring masks, pediatric deaths from Covid-19 have more than doubled since July. While the number of deaths is still extremely low relative to other age groups — only 17 children have died from Covid-19 in the state since the beginning of the pandemic — seven of those deaths were between March 2020, when the outbreak began in the US, and July 2021, a period of 15 months. The remaining 10 occurred after July 30 this year, Politico reported Thursday.

Additionally, according to Politico, the Department of Education’s Office of Civil Rights is investigating the Florida public education system’s anti-mask mandate policy. In a letter to Robert Corcoran, commissioner of Florida’s Department of Education, Acting Assistant Secretary for Civil Rights Suzanne Goldberg warned that the policy could violate the civil rights of children with disabilities by preventing them from “safely returning to in-person education.”

Given the increase in pediatric cases — and scrutiny of in-school Covid-19 prevention policies — the pressure is on for vaccine manufacturers to determine whether their inoculations are safe for use in children.

According to German news outlet Der Spiegel, BioNTech will share the results of its clinical trials on children ages 5 to 11 this month, seeking global approval of the vaccine for use in this age group.

That could mean the Pfizer- BioNTech vaccine could be authorized for children in that age group as soon as the end of October, Reuters reported Friday.

BioNTech, which has partnered with Pfizer to manufacture its vaccine, also has a plan to seek approval for use in children ages 6 months to 2 years by the end of the year, and Moderna said that it has filled its roster for clinical trials of its vaccine in children ages 6 to 11 and is working on determining an appropriate dosage for children as young as 6 months.

In the meantime, however, Biden officials have emphasized that widespread vaccine uptake among people who are eligible for the vaccine is the best way to keep pediatric Covid-19 cases low.

“That’s why this collective responsibility we have as a society to make sure we are not only taking care of our own health, but reducing the chances we pass a virus on to somebody who’s more vulnerable — that’s why this is so important,” Surgeon General Vivek Murthy said on Friday. “And that’s what the efforts that the President announced yesterday will help us do: reduce transmission, protect lives, and protect our children as well.”

I have asked the Attorney General to stand prepared to take all actions to oppose this administration’s unconstitutional overreach of executive power. It has no place in America. Not now, and not ever.

— Governor Mark Gordon (@GovernorGordon) September 9, 2021

Let’s get one thing out of the way first: Vaccine mandates are not unconstitutional. The Supreme Court upheld a local health board’s decision to mandate smallpox vaccinations in Jacobson v. Massachusetts (1905). And states routinely require nearly all school-age children to receive a long list of vaccines.

In Georgia, for example, nearly all children must be vaccinated against many diseases, including polio, hepatitis B, measles, mumps, rubella, varicella, tetanus, diphtheria, pertussis, meningitis, and septicemia.

But just because the Constitution permits the government to require vaccines does not necessarily mean that the Labor Department may, as Biden says it will, issue a binding rule requiring large employers to encourage vaccination. The Labor Department may only act pursuant to an act of Congress. So unless Congress passes a new law, the department must rely on an existing statute if it wishes to regulate employers.

There is a strong argument, however, that the Occupational Safety and Health Act of 1970 (OSH) permits the Labor Department to act. Among other things, that law permits the secretary of labor to issue an “emergency temporary standard” regarding workplace health or safety if they determine that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and that such a standard is “necessary to protect employees from such danger.”

The delta variant of the SARS-CoV-2 virus is a substance or agent that is physically harmful. Still, employers who object to the Labor Department’s new rules might claim that Covid-19 does not present a sufficiently “grave danger” to justify implementing an emergency standard. Or they might argue that the particular rule announced by President Biden is not “necessary” to protect workers from Covid-19.

Under existing case law, the Biden administration likely could overcome these objections. But they will also have to present their case to a judiciary that is dominated by Republican appointees and that has handed down several decisions undercutting public health rules intended to prevent the spread of Covid-19. So there’s no guarantee these courts will follow existing law.

The bottom line is that the fate of the new vaccination rules is uncertain. There is fairly little case law interpreting the Labor Department’s power to issue emergency standards, and there is no guarantee that an increasingly conservative judiciary will treat existing case law as binding.

But if the courts eventually strike down the Labor Department’s rule, it matters a great deal when they do so. If the rule is in effect for several months, even if the Supreme Court eventually decides to repeal it, many employers are likely to comply with it voluntarily — and millions of Americans could be vaccinated while the rule is in effect.

When can the Labor Department issue an “emergency temporary standard”?

The Occupational Safety and Health Act gives the Labor Department very broad authority to protect workers’ health and safety. Under the law, the secretary may issue binding regulations “to serve the objectives” of the statute. It enumerates several purposes that it is intended to achieve, including “authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce,” and “providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.”

Yet while the law gives the department a great deal of power to issue regulations, it normally may only do so in a lumbering, protracted process that typically takes years to complete. The Occupational Safety and Health Administration (OSHA), an agency within the Labor Department, often spends months or years meeting with stakeholders within an industry before proposing a new rule. The proposed rule must be announced to the public to give people who may be affected by the rule an opportunity to comment. Then OSHA must take these comments into account while devising a final rule.

According to the nonpartisan Congressional Research Service, the whole process, on average, takes seven years and nine months — meaning that, if the Biden administration started that process now in order to push out a vaccination rule, President Biden could be out of office by the time that rule is finalized.

The law also has a rarely invoked provision permitting OSHA to bypass this long process and issue an emergency temporary standard, which may remain in place for up to six months. Although this provision has not been used very often in the past, the Biden administration did use it last June to implement new, Covid-related rules governing health care employers.

Litigation challenging the Biden administration’s new vaccination rules is likely to focus on whether the Covid-19 pandemic meets the legal standard required to issue such an emergency rule — including whether Covid-19 presents a “grave danger” and whether the administration’s proposed rule is “necessary” to protect workers from that danger.

Kent Nishimura/Los Angeles Times via Getty Images
On Thursday, President Biden announced several new policies to encourage vaccination including requiring large employers to protect their workers from unvaccinated colleagues by requiring either vaccination or weekly testing.

Prior to the pandemic, the last time OSHA attempted to issue an emergency standard was 1983, when the Reagan administration tried to reduce the amount of asbestos workers could be exposed to by 75 percent. That rule was eventually struck down by the United States Court of Appeals for the Fifth Circuit, although on fairly narrow grounds, and in an opinion that suggests OSHA has a fair amount of discretion to decide when an emergency standard is warranted.

Significantly, the Fifth Circuit’s opinion in Asbestos Information Association v. OSHA (1984) holds that courts should not second-guess the agency’s determination that a particular health hazard presents a “grave danger” to workers. “Gravity of danger is a policy decision committed to OSHA, not to the courts,” according to the Fifth Circuit.

Moreover, even if the courts were to make such judgments, the Fifth Circuit’s opinion suggests that health hazards that are far less threatening than Covid-19 can still be a “grave danger.” According to OSHA, the Reagan administration rule at issue in Asbestos Information Association was expected to save “eighty lives out of an estimated worker population of 375,399” during the six-month period that it would have been in effect — far fewer than the hundreds of thousands of lives lost to Covid-19.

And yet, the Fifth Circuit explained that “the Secretary determined that eighty lives at risk is a grave danger. We are not prepared to say it is not.”

While Asbestos Information Association has some good news for the Biden administration, the court’s opinion also suggests that OSHA may carry a difficult burden of proof when it claims that an emergency standard is “necessary” to protect workers.

The Fifth Circuit did not rule on whether the Reagan-era asbestos standards were “necessary,” but it did strike down those standards because OSHA failed to consider alternative rules, such as requiring employers to provide respirators to their workers that could filter out asbestos.

Under the Fifth Circuit’s opinion, OSHA could have potentially reissued the same emergency asbestos standards if it had explained why alternatives such as respirators are inadequate. But OSHA had to actually do that work.

So are the courts likely to uphold the Biden administration’s vaccination rules?

One piece of good news for the Biden administration is that anyone challenging an emergency temporary standard must file a petition in a United States Court of Appeals, not in the federal district courts that normally try cases prior to appeals. That will prevent these challengers from seeking out one of the several district judges with well-earned reputations as conservative ideologues who can often be relied on to block Democratic policies.

The Fifth Circuit’s opinion in Asbestos Information Association suggests one way that judges acting in bad faith might sabotage the new vaccine rules. That opinion implies that OSHA must consider all reasonable alternatives to a new policy, and explain why those alternatives are inadequate. (We won’t know why the Biden administration believes that alternatives such as mask requirements are inadequate until OSHA formally issues the document implementing the new policy.)

But a hostile panel might also force OSHA to consider unreasonable alternatives, and then send the vaccination rule back to the drawing board because OSHA failed to explain why it couldn’t require unvaccinated employees to wear hazmat suits or to seal themselves up in a hermetic bubble.

The Supreme Court’s conservative majority is also increasingly hostile to federal statutes that grant broad regulatory authority to federal agencies, and may view a challenge to new vaccine rules as a good opportunity to diminish OSHA’s authority.

Last month, in Alabama Association of Realtors v. HHS, the Supreme Court struck down a moratorium on many evictions promulgated by the Centers for Disease Control and Prevention (CDC). The CDC claimed that such a moratorium is justified because it would prevent the spread of Covid-19 by people who lost their homes and had to seek shelter with friends or in homeless shelters. And the CDC relied on a broadly worded statute permitting it to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”

Nevertheless, a majority of the justices construed this statute narrowly to prohibit the eviction moratorium.

There are some important distinctions between the statute at issue in Alabama Association of Realtors and the text of OSH. The statute at issue in the eviction moratorium case contained some language that, at least according to a majority of the justices, should be read to limit the CDC’s authority to actions to “inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction of animals or articles.” OSH does not contain similar language.

That said, a major thrust of the Court’s opinion in Alabama Association of Realtors was that the CDC claimed a “breathtaking amount of authority,” and that no previous CDC regulation issued under the same statutory provision “has even begun to approach the size or scope of the eviction moratorium.”

These are not legal judgments so much as value judgments. A majority of the Supreme Court was more uncomfortable with a federal agency having the power to halt evictions en masse than it was with the possibility that people who lost their homes might spread a deadly disease. It’s not hard to imagine the same justices applying a similar value judgment to the Biden administration’s vaccine rules.

All of which is a long way of saying that the fate of those rules is likely to turn less on what OSH (or any other federal law) actually says, and more on whether at least five members of the Supreme Court agree with Biden’s policy.

The man elected to govern the United States has come up with a plan to fight Covid-19. It’s now up to a panel of unelected justices to tell us if he can implement it.

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