January 26th 2023 | Joe Brennan
Edited by Stella Lee
The Supreme Court heard and decided a number of impactful cases in its most recent term. While much of the media attention was focused on Dobbs v. Jackson Women’s Health Organization[1], which overturned Roe v. Wade and eliminated a federal right to abortion, there was another decision with equally significant ramifications, albeit in different areas. In West Virginia v. Environmental Protection Agency[2], the Supreme Court held for the first time that the major questions doctrine applies to government agencies’ interpretations of statutes. The case concerned the EPA’s ability to regulate carbon dioxide emissions from power plants under section 111 of the Clean Air Act.[3] This puts significant limits on the power of administrative agencies to make major decisions and issue rules with far-reaching impacts. While its full effects remain to be seen, West Virginia v. EPA is certain to change the way the federal government handles major issues.
The major questions doctrine is a derivative of another, much older principle called the nondelegation doctrine. In a nutshell, the nondelegation doctrine states that powers delegated, or assigned, to one person or institution cannot then be assigned by that person or institution to some other person or institution. This is a principle frequently cited in British common law, which the American legal system is ultimately based on.[4] However, from very early in American legal history, judicial decisions began to create exceptions to the nondelegation doctrine. In Wayman v. Southard, the Supreme Court upheld the legality of a statute wherein Congress authorized the courts to create their own rules of procedure.[5] The opinion stated that as long as Congress gave a general mandate to an entity, it need not spell out every last detail and could rely on the entity to fill in the gaps. In 1989, the Court upheld this idea, holding in Mistretta v. United States that, especially in complex, technical fields, it is impractical to expect Congress to write the finer points of every program into law.[6] Justice Blackmun wrote that “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority”, then the Constitution is satisfied and the agency may make policy within those boundaries. This gave rise to the practice of administrative rulemaking, wherein Congress would state in general terms what it wanted, and then agencies like the EPA would write thousands of pages of technical rules carrying the same force as congressionally enacted statutes.[7]
This system of administrative rulemaking led to disputes over the exact limits of agency power. Since 1984, the standard in such cases has been what is known as Chevron deference. The name comes from Chevron v. Natural Resources Defense Council, which held, in effect, that the courts were not to be the umpires of the limits of agency power.[8] Rather, the agencies themselves were, and as long as their reading of a statute was “reasonable”, the courts should stay out. This system gave the agencies great freedom, and many issued rules freely. Administrative rulemaking became a way for presidents to take unilateral action on matters in which they could not expect congressional approval, such as gun control and climate change. The agencies, which report to the president, would write and implement their own rules using authority they decided they had based on their interpretations of statutes, and Congress never had to get involved.[9]
An attempt at this sort of backdoor legislation led to West Virginia v. EPA. The EPA, as part of the Obama administration’s Clean Power Plan, attempted to use its authority under the Clean Air Act to regulate carbon dioxide as an air pollutant. Their rules would have required massive reductions in carbon dioxide emissions from power plants. Hundreds of states and corporations brought a lawsuit, which was put on hold when Donald Trump was elected. Trump’s administration promised to repeal the Clean Power Plan, but the repeal garnered lawsuits from the Plan’s supporters. The D.C. Circuit Court struck down the repeal.[10] West Virginia led a coalition of eighteen other states in bringing an appeal of the circuit ruling to the Supreme Court. The Supreme Court agreed to hear the case, and ultimately ruled in favor of West Virginia. It held that, although the EPA did have the authority to require power plants to use certain emissions control technologies, it could not compel them to switch wholesale to cleaner methods of electricity generation. Justice Roberts wrote the majority opinion, and he stated that a regulatory imposition so large constituted a “major question”, which was outside of the usual Chevron deference.[11] Such major matters, Roberts and the Court said, required a more explicit grant of power from Congress. The opinion was vague as to what constituted a major question, but mentioned the clarity of the delegation and the impact of the rule as relevant factors when assessing whether a matter constitutes a major question.
Since the West Virginia decision is only about five months old at the time of this writing, it is difficult to say exactly what impact it will have and how significant that impact will be. It does indicate, however, that the Supreme Court does not see Chevron deference or agency power as unlimited and that these justices are willing to intervene where previous justices have not. The most immediate tangible impact is that the Clean Power Plan, implementation of which was curtailed under Trump but restarted under Biden, will not achieve its target emissions reductions. The EPA’s proposed rules on cleaner methods of power generation were a major part of the Clean Power plan, and those rules now cannot be implemented without action by Congress to give the EPA clear authority to do so. Other agencies potentially affected include the Bureau of Alcohol, Tobacco and Firearms, which recently issued a rule to alter the definition of “firearm” under federal law to include kits from which the buyer may assemble a gun.[12]
In conclusion, the Supreme Court’s ruling in West Virginia v. EPA and its adoption of the major questions doctrine will likely have a significant impact on the workings of federal administrative agencies. It may prevent agencies from issuing their largest or farthest-reaching desired rules, and it inhibits the president’s ability to make policy without the approval of Congress, especially as it relates to climate change. President Biden has stated that his goal is for the United States to be net zero emissions by 2050. Achieving this will certainly require broad regulations on emissions, and West Virginia v. EPA makes it much more likely that those regulations will have to come from Congress rather than the EPA. With the recent Republican victories in the midterm elections giving them control of the House of Representatives, the passage of an ambitious and expansive regulatory package such as was outlined in the Clean Power Plan is unlikely for at least the next two years. Finally, the decision indicates that the Supreme Court, after decades of liberally applying Chevron deference to cases about agency authority, is once again willing to consider such issues and become involved in some of the most contentious debates currently facing the country.
Brennan is a senior at Johns Hopkins University majoring in Economics with a minor in History.
Sources:
[1] Dobbs v. Jackson Women’s Health Organization 597 U.S. (2022)
[2] West Virginia v. Environmental Protection Agency 597 U.S. (2022)
[3] 42 U.S.C. §7411
[4] Rene Reyes, Nondelegation Doctrine in Comparative Context: Britain’s Great Repeal Bill and the Shadow of Henry VIII, 166 U. PA. L. Rev. ONLINE 71 (2017), http://www.pennlawreview.com/online/166-U-Pa-L-Rev-Online-71.pdf
[5] Wayman v. Southard 23 U.S. 10 (1825)
[6] Mistretta v. United States 488 U.S. 361 (1989)
[7] C. M. Kerwin & Scott R. Furlong, Rulemaking: How Government Agencies Write Law and Make Policy (CQ Press) (2019)
[8] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984)
[9] C. M. Kerwin & Scott R. Furlong, Rulemaking: How Government Agencies Write Law and Make Policy (CQ Press) (2019)
[10] EPA’s industry-friendly climate rule struck down by Court (3) Bloomberg Law, https://news.bloomberglaw.com/environment-and-energy/epas-industry-friendly-climate-rule-struck-down-by-court
[11] West Virginia v. Environmental Protection Agency 597 U.S. (2022)
[12] 87 FR 24652 Definition of “Frame or Receiver” and Identification of Firearms (2022)
Photo Credit: The New Yorker
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