The Volokh Conspiracy

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Supreme Court

Justice Kagan Throws Down the Gauntlet: We Are Not "All Textualists Now"

In her forceful West Virginia v. EPA dissent, Justice Kagan challenges the majority's commitment to textualism.


Yesterday,  in West Virginia v. Environmental Protection Agency, the Supreme Court concluded that the Environmental Protection Agency lacks the power under Section 111 of the Clean Air Act to base greenhouse gas emission limits for power plants based on generation switching. I summarized the ruling here. (Prior posts on the case are linked here.)

Justice Elena Kagan wrote a powerful dissent, challenging the majority's interpretation of the Clean Air Act and its express reliance on the "major questions doctrine" to narrow the scope of EPA's authority.

Justice Kagan's dissent concludes with a forceful challenge to the Court's avowed textualists. From Kagan's opinion:

Some years ago, I remarked that "[w]e're all textualists now." . . . It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the "major questions doctrine" magically appear as get out-of-text-free cards.  Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.

While her analysis is powerful, Justice Kagan does not fully grapple with the portions of the Clean Air Act that undermine her conclusions. Rather, she focuses on the word "system" in "Best system of emission reduction," without really engaging with those portions of the Act that indicate such systems must be adopted on a source-specific basis. To be fair, however, the majority opinion does not really call her on it, resting more heavily on the major questions doctrine than on close and careful statutory analysis. (In this regard, the majority opinion has some parallels with the opinion in NFIB v. OSHA.) Justice Gorsuch's concurrence defends the provenance of the major questions doctrine, but it too fails to square off with Kagan on the statutory text.

Justice Kagan also concludes with a paean to delegation, extolling the reasons Congress delegates and warning against limits on such authority. Her opinion closes:

when it comes to delegations, there are good reasons for Congress (within extremely broad limits) to get to call the shots. Congress knows about how government works in ways courts don't. More specifically, Congress knows what mix of legislative and administrative action conduces to good policy. Courts should be modest.

Today, the Court is not. Section 111, most naturally read, authorizes EPA to develop the Clean Power Plan—in other words, to decide that generation shifting is the "best system of emission reduction" for power plants churning out carbon dioxide. Evaluating systems of emission reduction is what EPA does. And nothing in the rest of the Clean Air Act, or any other statute, suggests that Congress did not mean for the delegation it wrote to go as far as the text says. In rewriting that text, the Court substitutes its own ideas about delegations for Congress's. And that means the Court substitutes its own ideas about policymaking for Congress's. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.

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 power plants' carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.