Supreme Court rulings, once announced, sometimes take on curious lives. Understood in one way when released, they can, as precedent, shape the law in other, unexpected ways. The Supreme Court’s opinion in West Virginia v. US Environmental Protection Agency (EPA), handed down on June 30, 2022, might well become one of those rulings. Or it might not.
West Virginia v. EPA considered the legality of the 2015 Clean Power Plan, an Obama-era effort to curtail carbon emissions by coal-fired power plants. The plan’s legality turned on whether Congress had given the EPA sufficient legal power to adopt the plan’s unusual regulatory features. Questions from the justices at oral argument suggested the plan would not withstand scrutiny. In some way, court-watchers predicted, the court would conclude that the EPA had exceeded its delegated powers. But what reasoning would it employ?
The Court’s ruling—striking down the 2015 Plan as expected—was promptly attacked by green groups as a major setback, as a politically motivated roadblock to overdue climate action. Laments were shrill and wide-ranging, particularly in fund-raising solicitations. The dissenting opinion by Justices Kagan, Breyer, and Sotomayor set the dark tone: “Today, the court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”
What early reports glossed over was that the majority’s opinion had little to say on climate change or on the need for prompt action. No justice questioned the gravity of our current plight. None suggested the EPA’s plan was unwise. For the court’s six-member majority the dispute they faced had to do instead with a different, broader issue, one cutting to the roots of federal governance.
For a full term the Obama administration had tried to work with Congress on climate legislation only to meet repeated defeat. Its Clean Power Plan, released during year three of Obama’s second term, was designed to fill the legislative void, one of many executive actions taken to address challenges a gridlock-bound Congress couldn’t handle. With Congress out of action, the president was left to push his policies using whatever legal authority he could unearth.
For the majority in West Virginia it was this disturbing institutional development, this governmental malfunction, that drew their attention. Under the separation of powers doctrine major policy questions were matters for Congress to resolve, not unelected bureaucrats. The day had come, the majority sensed, to speak out on this troublesome power shift, to rearticulate and defend the constitution’s basic governing structure.
As the court examined the 2015 plan, it was struck if not alarmed by the novelty of the EPA’s approach. The EPA clearly had the power to force polluters to cut air emissions by installing the best air-pollution control technology; that was not in question. In the instance of coal-fired plants, though, the EPA wanted more. It sought to compel power companies to burn less coal and to shift electricity generation to natural gas or, even better, solar and wind. To command this kind of “generation shifting,” the 2015 plan set allowable carbon-emissions limits so low that no pollution-control technology would suffice to meet them. Power companies would simply have to burn less coal.
Power companies, it turned out, were prepared to do that, and for the most part supported the 2015 plan before the court. It was the coal industry and coal-dependent states that struck back, fearing that if the EPA could force some reduction in coal burning it could, on its own and without congressional approval, push the nation’s energy system entirely away from coal. It was a fear the court shared, not on policy grounds but because a single agency was asserting authority to restructure the nation’s energy system, forcing billions in spending and triggering vast economic and social disruption. The agency was doing so, moreover, by relying on a statutory provision it had rarely used (and never in this way) to implement policy stances Congress had considered and spurned.
In the end, the court invalidated the plan—in the process, it believed, honoring the constitution’s framework—by crafting and deploying a new doctrine of legal interpretation. This dispute, the court announced, was governed by the “major questions doctrine,” an interpretive tool the court will apparently use from now on when assessing the legality of a select number of “extraordinary” regulatory actions. An agency whose regulatory action is subject to the major questions doctrine will, in the future, need to point to “clear congressional authorization” to justify regulatory action that grapples with major policy issues, that embraces novel regulatory approaches, and that would bring on widespread economic and social change.
With a bit of hindsight it seems apparent already that the EPA’s loss in West Virginia was not such a major setback, for it or for climate policy. Other tools can be and are being used to displace coal, through federal, state, and private action. Indeed, the plan’s 2030 emissions-reduction goal has already been exceeded without the plan ever taking effect. Coal’s ongoing decline will continue, particularly given the bold climate planks in the Inflation Reduction Act, signed August 16, which ramped up the EPA’s power to reduce greenhouse gases. Furthermore, the Court’s narrowly worded reasoning seemed expressly designed to avoid casting doubt on anything else the EPA had done or was doing.
If West Virginia enjoys a long, eventful life, it will instead be because of the major questions doctrine with which it will be enduringly linked. Left-leaning critics immediately challenged the doctrine, fearing it portended heightened judicial hostility toward regulatory action, a looming variant perhaps of the suspicion the Supreme Court showed up to the New Deal era. Such fears may prove grounded, even as the Court insisted, as noted, that the doctrine would apply only in “extraordinary” cases. Yet bold agency action can push in varied directions. Progressive reformers might one day find themselves grateful that the major questions doctrine is at hand to challenge actions they dislike.
As it formulated and grounded the new interpretive doctrine the Supreme Court cited earlier rulings that, in effect (though not in name), had already given rise to it. One was a 2000 decision undercutting the alleged power of the Food and Drug Administration to regulate tobacco as a drug. Another was the court’s 2006 ruling rejecting the claimed authority of the US Attorney General to “rescind the license of any physician who prescribed a controlled substance for assisted suicide, even in a State where such action was legal.”
With Congress’s dysfunction not soon to end, future administrations from both parties will likely keep pressing the limits of Article I powers. Conservative uses might well feature, for instance, regulatory steps to restrict abortion, gun-control laws, or more fast-paced climate action in blue states.
And so the major questions doctrine has entered the law to shore up the constitution’s separation of powers. What future lies ahead for this grandly named newborn? How commonly will extraordinary disputes arise, and might applications of the doctrine over time display political patterns? And if Congress remains hobbled will the doctrine in effect leave the federal government unable to address key challenges? And there remains the starting question: can Congress find a way to get back to business so that presidential administrations can work with it rather than without it? The recent Inflation Reduction Act, which every Senate Republican opposed, offers only modest hope.
Eric Freyfogle, a central Illinois native and long-time UIUC law faculty member, has written widely on the cultural and institutional roots of our environmental ills and on the intellectual and legal shifts needed to address them. His volunteer work for conservation groups has included service on the boards of the National Wildlife Federation and the Champaign-based Prairie Rivers Network.
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