Save Our Environment

The “Major Questions Doctrine” is Formally Named and EPA’s Regulatory Authority under the Clean Air Act is Curtailed: West Virginia, et al. v. EPA, et al.

By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section

In one of the more significant decisions of the October 2021 Term of the U.S. Supreme Court, SCOTUS formally gave name to the Major Questions Doctrine, and used it to prune the regulatory authority of the U.S. Environmental Protection Agency (“EPA”) to address how carbon emissions are reduced from fossil fuel electric generating facilities.

The case was West Virginia, et al. v. EPA, et al., 597 U.S. ____(June 30, 2022), and was the last major case decided in the term. Chief Justice Roberts authored the opinion and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Kagan wrote a dissent and was joined by Justices Breyer and Sotomayor. So, West Virginia v. EPA is another 6 to 3 decision, with all the “conservative” justices in the majority, and all the “liberal” justices in the minority.

The case turns on the meaning of section 111(d) of the Clean Air Act (“CAA”), 42 U.S.C. §7411(d). The CAA was promulgated in 1970, and has since been amended, in part. Section 111 is known as the New Source Performance Standard section of the CAA, and provides authority to EPA to regulate emissions from new sources of pollution. Section 111(d) also provides EPA with authority to regulate emissions from existing sources of air pollution, if those pollutants have not been regulated under CAA Section 108 (ambient air quality standards), or CAA Section 112 (hazardous air pollutants). In CAA Section 111, EPA was given the authority to adopt standards of performance for emissions that reflect “the degree of emission limitation achievable through the application of the best system of emission reduction … [that] has been adequately demonstrated.” 42 U.S.C. §§7411(a), (b)(1) (emphasis supplied).

In 2015, the Obama administration enacted the regulatory program known as the Clean Power Plan (“CPP”), which established limits on carbon pollution from electric generating facilities in the United States. No serious dispute exists over the fact that the electric generating industry is a major emitter of carbon into the atmosphere. The CPP also mandated emission reductions by shifting the generation of electricity from fossil fuels (e.g., coal) to renewable energy sources of electricity, among other things. This “system” of emission reduction was named “generation-shifting,” and was challenged by many states and the coal industry, as beyond the authority of EPA. These challenges were filed in the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”). SCOTUS issued a stay of the CPP, while the D.C. Circuit deliberated. After the election of President Trump in 2016, EPA announced that it intended to reconsider the CPP. The D.C. Circuit dismissed the case.

The Trump administration ultimately repealed the CPP and enacted an alternative rule, named the Affordable Clean Energy Rule (“ACE Rule”). The ACE Rule was then challenged before the D.C. Circuit, which vacated the repeal of the CPP, and also vacated the ACE Rule, and remanded the case to EPA. However, a number of entities appealed the D.C. Circuit’s vacation of the ACE Rule.

With the election of President Biden in 2020, EPA signaled that it would again initiate rule-making proceedings aimed at controlling power plant emissions. A new EPA rule has not been issued (and EPA as a result of the West Virginia v. EPA ruling likely will not be able to propose a “system” of emission control that involves “generation-shifting”). EPA has other administrative tools to address this issue, but they may not be as effective as the “generation-shifting” approach.

So, given the procedural posture (CPP stayed, ACE Rule vacated, and EPA considering a new rule), SCOTUS did not have to review this issue, but decided to anyway (because the SCOTUS majority felt the agency action complained of was likely to be repeated).

There seems to be no serious dispute (at least among most scientists), that anthropomorphic climate change is a serious, existential problem, and that expeditious, effective measures must be employed to reduce carbon emissions. There is also no serious dispute that the CPP would be very expensive to implement, and that the agency action would also essentially pick some big winners and losers. Some of the big losers would be the coal industry and coal producing states, and some of the big winners would be natural gas producers and the alternative energy industry.

In the majority opinion, Chief Justice Roberts analyzes the statutory language of CAA Section 111(d), and concluded that the authority provided by Section 111(d) had been little used in the past, and was vague or ambiguous regarding what types of measures could constitute the “best system of emission reduction … that has been adequately demonstrated.” 42 U.S.C. 7411(a) (1) (emphasis supplied). EPA argued that the CPP approach was a “system,” and EPA’s interpretation should be given deference under the Chevron Doctrine (judicial deference to agency interpretation of statutes and rules which the agency administers), Chevron v. NRDC, Inc., 467 U.S. 837 (1984).

However, Chief Justice Roberts made no direct mention of the “Chevron Doctrine” in the majority opinion, and instead gave further explication of what the majority has formally labeled as the “Major Questions Doctrine.”

Nonetheless, our precedent teaches that there are “extraordinary cases” that call for a different approach—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the

“economic and political significance” of that assertion, provide a “reason to hesitate before concluding that

Congress” meant to confer such authority. Slip op. at 17 (citations omitted).

Chief Justice Roberts pointed to precedents which he asserted applied the “Major Questions Doctrine, ” but as Justice Kagan’s dissent points out, this was the first time SCOTUS had given the doctrine a name: The Court has never even used the term “major questions doctrine” before. Dissenting Slip Op. at 15. Justice Kagan also noted:

It announces the arrival of the “major questions doctrine,” which replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules. Ante, at 16– 31. Apparently, there is now a two-step inquiry. First, a court must decide, by looking

at some panoply of factors, whether agency action presents an “extraordinary case.” Ante, at 17; see ante, at 20–28. If it does, the agency “must point to clear congressional authorization for the power it claims,” someplace over and above the normal statutory basis we require. Dissenting Slip Op. at 15.

In a concurring opinion, Justice Gorsuch attempted to explain more fully the cases which would trigger the “Major Decisions Doctrine” and the standards which would be applied to determine the applicability of the doctrine. Unfortunately, the Gorsuch concurrence was joined only by Justice Alito, so the Gorsuch concurring opinion does not have much authority (but at least it is something).

So, unless Congress gives EPA additional clear and specific authority to mandate “generation-shifting,” EPA must use different tools under the CAA to achieve the level of carbon emission reductions it thinks are necessary. Justice Kagan begins her dissent with these words:

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.” Massachusetts v. EPA, 549 U. S. 497, 505 (2007). Dissenting Slip Op. at 1. Justice Kagan ends her dissenting opinion with these words:

The subject matter of the regulation here makes the

Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb powerplants’ carbon dioxide emissions.

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.

Respectfully, I dissent. Dissenting Slip Op. at 32-33.

The “Major Questions Doctrine” is ascendant, and the “Chevron Doctrine” is descendant. If your job is statutory drafting, I wonder how the “Major Questions Doctrine” will be addressed?