Climate Change Returns to the Supreme Court: Previewing West Virginia v. EPA (Updated)

The most important environmental case of the 2021-22 term will be heard next week.

On Monday, February 28, the Supreme Court will hear oral argument in West Virginia v. Environmental Protection Agency. In this case, the justices will consider the scope of the EPA's authority to regulate greenhouse gas emissions from the power sector. The Court's decision could have broad implications for climate policy, environmental law, and regulatory policy more generally.

On Thursday, February 24, the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law will host a free, online webinar previewing the case, featuring Professor Lisa Heinzerling of the Georgetown Unviersity Law Center and Professor James Coleman of the SMU Dedman School of Law. Details and registration info are here.

I have also written several blog posts on this litigation, and will blog about the oral argument on Monday. My posts on this case are listed below.

• Could the Supreme Court Revive the Trump Administration's ACE Rule? - Oct. 7, 2021
• Supreme Court Agrees to Hear Case Challenging EPA Authority to Regulate Greenhouse Gases (Updated) - Oct. 29, 2021
• Does the Supreme Court Have Jurisdiction to Hear West Virginia v. EPA? - Feb. 2, 2022
• Standing in West Virginia v. EPA Revisited - Feb. 21, 2022

In addition to the above, this book chapter -- A "Step Zero" for Delegations -- suggests an approach the Supreme Court may take to the major questions doctrine in this case.  Relatedly, the following two posts discuss issues raised in the OSHA's vax-or-test standard that may foreshadow how the Court could approach these questions in West Virginia v. EPA.

• COVID-19, Major Questions, and Pouring New Wine from Old Bottles - Jan. 10, 2022
• Why the Supreme Court's Decision in NFIB v. OSHA May Be Even Worse News for Climate Regulation than You Thought - Jan. 24, 2022

UPDATE: The above-mentioned webinar may now be viewed here.

UPDATE: Here is my post on the WVA v. EPA oral argument: "Supreme Court Digs into Statutory Details More than Standing or Nondelegation in West Virginia v. EPA."

Comments

[DaivdBehar]

Complex subject. Ivy indoctrinated, know nothing, lawyer, bookworm dumbasses are not qualified to make any decision on the subject.

[vlsjfk]

What is the best argument that the major question doctrine has a historical basis? Does it?

[Rossami]

That's an interesting question but I think the wrong one. The Major Questions doctrine is about the degree of deference due to executive branch agency decision-making in the absence of explicit Legislative Branch decision-making. The Major Questions doctrine therefore could not even exist before the creation of the Administrative State.

The question you should be asking is what is the historical basis allowing the creation of the Administrative State and the delegation of quasi-legislative decision-making in the first place. The plain wording of the Constitution is not supportive of a right to delegate. The Federalist (and Anti-Federalist) Papers are a good source of the understanding of the issue at the time the Constitution was being debated. While they never use those words, I believe they demonstrate a general consensus against delegation.

But once you allow delegation, there is no question that the degree of delegation has limits. And that's the obvious source of the Major Questions doctrine. Even if you grant that Congress might be able to delegate away some of their decision-making authority, there is no good reason to assume that their delegation was open-ended - and strong constitutional arguments that they can't just delegate away their jobs even if they wanted to.

"Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

[Dilan Esper]

I'm not sure it's a great argument, but I agree that's basically the argument for it. You aren't going to hold the administrative state unconstitutional, and there are established efficiencies with using the administrative state to do rulemaking, but some things are so important that they really do require a congressional authorization. It's, in a sense, the limitation that allows the administrative state's blurring of separation of powers.

As I said, I don't know if I really buy that, but that's the argument.

[Stephen Lathrop]

Rossami, I think your argument went out the window in about 1815, when James Madison reversed his former advocacy regarding the constitutionality of national banks. Long story short: shortly after ratification, Madison vehemently opposed the national bank as unconstitutional. Madison's arguments did not carry the day, and the bank was chartered. Toward the end of his presidency, Madison faced renewal of the national bank charter, and declined to oppose it. Here is a description of his reasons, taken from a Madison biography by Noah Feldman:

"The national bank had played an important part in shaping the U.S. economy, and Madison now said he was open to a bill to recharter it. The previous January, he had explained to Congress that his old objections to the bank had been removed 'by repeated recognitions, under various circumstances, of the validity of such an institution, in acts of the legislature, executive, and judicial branches of government.' All three branches of government, backed by, 'the general will of the nation,' had now for many years treated the bank as constitutional. Therefore, the bank now was constitutional."

[Rossami]

You are, arguably, putting a date to the first precedents for the creation of the administrative state. That does nothing, however, to undercut the claim that the major questions doctrine is derivative of and based on the the principles that allowed that administrative state.

Note that then and now, the national bank (now the Federal Reserve) has only those powers explicitly granted to it and is not granted deference when it exceeds those delegations.