In Its Latest Ruling Against The EPA, The Supreme Court Strikes Another Blow Against Regulatory Authority

In yet another 6-3 ruling split into ideological camps, the Supreme Court limited the EPA’s ability to combat global warming.

The impact of this ruling will go far beyond the EPA’s capacity to curtail climate change, however. The narrow demarcation of regulatory authority could potentially reduce the discretionary powers of all federal agencies—an about face from the standards applied since the New Deal that has been a long-held goal of conservative jurists.

West Virginia v. EPA was the latest in a string of cases in which the Court grappled with the scope of regulatory rule-making in the face of unclear statutory authority.

In making these determinations, the Court historically granted federal agencies great leeway in interpreting statutes, even ambiguous or outdated ones. In recent years, there has been pushback by Justice Brett KavaKAVA
naugh as well as other conservative jurists who have questioned the scope of this deference in their quest to fashion a narrower vision of regulatory power.

To do so, they have relied on concepts like the “major questions” doctrine, which played a key role in the majority opinion. The concept declares that when an agency imposes rules of “vast economic and political significance,” it must do so only when Congress acted clearly and authoritatively. Writing in 2001, the late Justice Antonin Scalia explained the concept in the colorful prose he was renowned for: the need for a “textual commitment to authority must be a clear one. Congress,” he continued “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

In concluding that the EPA lacked “clear congressional authorization” to create such a far-reaching plan, the majority applied the major questions doctrine in this case. “A decision of such magnitude and consequence,” Chief Justice John Roberts Jr. wrote in the majority opinion, “rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Developed during the Obama administration, the EPA’s Clean Power Plan relied on the Clean Air Act—a law passed in 1970 when acid rain, smog, and other toxic air pollutants were Congress’ primary environmental concerns—to circumscribe greenhouse gas emissions by pushing the coal industry to fundamentally transform itself away from burning carbon-based energy.

After Congress last amended the Act in 1990 with bipartisan support, it failed to update the law since then despite the growing fears surrounding climate change. This lack of undeniably clear statutory authority has repeatedly forced the EPA to resort to legal acrobatics to tackle global warming.

Congressional inaction also led the EPA to come up with the Clean Power Plan. Though President Donald Trump reversed Obama’s program and the Biden administration argued before the Court that it has abandoned the Clean Power Plan, which would make a judicial proceeding premature at this stage, the justices agreed to rule on the scope of the EPA’s authority to regulate the power industry.

Determining the scope of regulatory authority has been a common role for the Court. At each step of the regulatory process, industry groups, regulated companies, and state governments opposing the EPA’s moves have launched lawsuits questioning the agency’s policies. Just like this case, the absence of legislative guidance has forced the Court to serve as the final arbiter on whether the EPA has exceeded its statutory authority. In EPA v. EME Homer City Generation, a case decided in 2014, for instance, the Court explained that by “Lacking a dispositive statutory instruction to guide it,” the EPA had to find a “‘reasonable’ way to filling [in] ‘the gap left open by Congress.’”

While the Court has issued a mixed set of rulings on the concepts of statutory authority in recent decades, an expanded reliance on the major questions doctrine is increasingly serving as a significant exception to the broad deference typically accorded to federal agencies.

The Court’s recent reliance on the doctrine to reject the CDC’s nationwide eviction moratorium exemplified the legal concept’s far-reaching consequences. The Court reasoned that because the CDC’s order impacted more than 80 percent of the nation, the action required “Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’”

Expanded use of the doctrine would represent a major blow to regulatory power and be a boon for heavily regulated industries such as the energy sector.

Though the dissenting opinion filed by Justice Elena Kagan largely argued for a different interpretation of the Clean Air Act, it questioned the majority’s sincerity in applying textualism, an interpretative tool popularized by Scalia that the majority applied in this case to support its use of the major questions doctrine. “The current Court is textualist only when being so suits it. When that method would frustrate broader goals,” Kagan wrote, “special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”

In the majority’s attack against the administrative state, she declared, “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.”