In West Virginia v. Environmental Protection Agency (EPA), the Supreme Court is expected to decide how far the EPA may go in regulating greenhouse-gas emissions from coal-fired and gas-fired power plants under the Clean Air Act. The case arises under a specific provision of the act, section 111, which authorizes the EPA to set standards for stationary sources of air pollution. Potentially, however, the case will have far broader implications, not only for the Clean Air Act but also for other federal statutory frameworks that aim to protect public health and the environment.
The Clean Air Act is lengthy and complicated, and the opposing sides in West Virginia have offered an array of arguments as to why it should be interpreted as supporting their views. Central to all the arguments, though, is a single passage in section 111, charging the EPA with setting standards for stationary sources that reflect the “best system of emission reduction.” Does the “best system” include only those emission controls, such as on-site efficiency improvements, that can be applied to a particular power plant at a particular location? Or does it also include controls, such as shifting generation to off-site sources that use cleaner forms of energy, that go “beyond the fenceline” of a particular power plant? In a 2015 regulation issued under section 111 (dubbed the “Clean Power Plan”), the EPA took the latter, broader position, which enabled it to enact stricter rules for fossil-fuel–fired power plants than the narrower interpretation would have allowed. This legal perspective is what West Virginia and others are challenging in the current case.
Not long ago, the Supreme Court would have had a ready answer to any question about the extent of a federal agency’s discretion in interpreting broad statutes: it would have deferred to the agency’s reasonable interpretive choice. In recent years, however, the Court’s conservative justices have so frequently and vociferously complained about “Chevron deference” (so called after a 1984 case that embraced generous deference to agencies’ legal interpretations) that conservative and liberal justices alike now scarcely whisper its name. In Chevron’s place, the conservative justices have installed a powerful and — for public health and the environment — dangerous new approach to statutory interpretation.
The conservative justices have summed up their approach in a single, deceptively benign sentence: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”1,2 Two recent federal rules aimed at reducing the spread of Covid-19 have fallen to the Court’s axe on the basis of this idea, which has come to be known as the “major questions” doctrine because it focuses on the significance of the powers an agency is exercising. In Alabama Association of Realtors v. Department of Health and Human Services, the Court — using its emergency docket (known popularly as the “shadow docket”), without the benefit of full briefing and argument — held that the Centers for Disease Control and Prevention (CDC) had most likely exceeded its authority under the Public Health Service Act by imposing a nationwide moratorium on evictions of tenants in areas experiencing high levels of Covid-19 transmission. In National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, the Court — after expedited briefing and argument — decided that the Occupational Safety and Health Administration had most likely exceeded its authority under the Occupational Safety and Health Act by issuing a rule requiring vaccination or testing in workplaces employing at least 100 people.
The Court made quick work of both these rules, brushing aside the federal government’s arguments that, in the middle of the worst pandemic in more than a century, the health-focused language of each statute amply supported their validity. The Court was looking for undeniably clear statutory language authorizing the agencies’ particular responses, and it failed to find such language in these pre-Covid laws. A national moratorium on evictions and a widely applicable workplace shot-or-test mandate were simply too consequential, the Court thought, for Congress to authorize an agency to impose them without using specific, crystalline language.
Many federal laws aimed at protecting public health and the environment do not speak the way the current Court prefers; instead, they speak in broad terms, authorizing agencies to address risks that Congress may not have foreseen or fully understood when it enacted the laws. The Court’s reasoning in the Covid-19 cases threatens the power of Congress to legislate against risks in advance, before those risks become severe problems.
How do we tell, moreover, which decisions are important enough to trigger the requirement for extra-clear language from Congress? Well, the judges will tell us. As Justice Brett Kavanaugh conceded when he was a judge on the D.C. Circuit, the “major questions” idea “has a bit of a ‘know it when you see it’ quality.”3 To similar effect, during oral arguments in West Virginia v. EPA, Chief Justice John Roberts suggested that a judge applying the major questions idea to an agency decision should ask whether it is “surprising” that the agency made that decision. A legal test that depends on a subjective judgment about whether an agency policy is important (or “surprising”) allows judges to let their own policy preferences rule the day.
The “major questions” test is not only subjective, but skewed. One might have expected that a legal test that turns on “vast economic and political significance” would take into account the consequences of an agency decision not only for regulated persons and entities but for the broader public as well. For the two Covid-19 rulings, for example, one might have expected judicial attention to be paid to the illnesses and deaths the government was trying to prevent, as well as to the costs to individuals and firms of complying with the new requirements. But that is not how the major questions idea works. The test requires judges to look only in one direction; if they find major consequences for regulated entities, they do not pause to reflect on the major consequences for the public if a regulation falls.
Thus, in West Virginia v. EPA, the parties using the major questions idea to narrow the scope of the EPA’s authority to regulate fossil-fuel–fired power plants have not lingered over the environmental and public health consequences of a judicial decision limiting the EPA’s authority. These consequences are simply irrelevant to the legal work they are asking the Court to do.
Indeed, in this unusual case, the justices do not even appear interested in figuring out whether the regulated entities themselves are injured in any way by the current status quo. In 2016, the Supreme Court itself — using the shadow docket — stopped the Clean Power Plan from taking effect. In 2021, the D.C. Circuit stopped its own decision, invalidating the repeal of the Clean Power Plan, from taking effect. At the moment, there is simply no EPA rule on the books regulating greenhouse-gas emissions from fossil-fuel–fired power plants. It remains a mystery why the Court reached out to take the West Virginia case despite the lack of a current injury on the part of the challenging parties. And the Court seems intent on keeping the case despite this lack of injury. At oral argument, none of the conservative justices seemed inclined to worry about the appropriateness of deciding a case challenging a nonexistent rule.
No matter how the Court rules in West Virginia v. EPA, there is no sign that the major questions doctrine is going away any time soon. This doctrine insists on pellucidity, and indeed clairvoyance, from Congress if it wants to empower an agency to take on an important problem. The consequences for the control of risks related to public health and the environment — risks that are often difficult to foresee in advance yet demand swift action when they emerge — may be dire.
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This article was published on May 11, 2022, at NEJM.org.
1. Alabama Association of Realtors v. Department of Health and Human Services, 141 S. Ct., 2021:2485-2489.
2. National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, 142 S. Ct., 2022:661-665 (quoting Alabama Association of Realtors).
3. United States Telecom Association v. Federal Communications Commission, 855 F.3d 381, 423-423 (D.C. Cir. 2017) (Kavanaugh, J., dissenting).
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