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WV v. EPA: Some Answers about Major Questions (But Not All the Answers We Need)

My forthcoming article the good, the bad, and the likely implications of the Supreme Court's decision West Virginia v. EPA

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In West Virginia v. Environmental Protection Agency, the Supreme Court correctly concluded that the Obama Administration and U.S. Court of Appeals for the D.C. Circuit embraced an overbroad understanding of the EPA's authority under Section 7411 of the Clean Air Act. The way the Court reached that conclusion left something to be desired, however. As I discuss in my forthcoming analysis of the case for the Cato Supreme Court Review, the Court front-loaded its consideration of the major questions doctrine and failed to fully engage with the relevant statutory provisions. It also missed an opportunity to refocus the major questions doctrine on what really matters in cases like this: What power did Congress delegate to the agency.

A draft of West Virginia v. EPA: Some Answers about Major Questions, is up on SSRN. Here is the abstract:

In West Virginia v. Environmental Protection Agency (WV v. EPA) the Supreme Court rejected an expansive reading of Section 7411 of the Clean Air Act. Expressly invoking the "major questions doctrine" for the first time in a majority opinion, the Court concluded Section 7411 of does not allow the EPA to require generation shifting to reduce greenhouse emissions. This decision rested on the longstanding and fundamental constitutional principle that agencies only have that regulatory authority Congress delegated to them. The Court further bolstered the argument that delegations of broad regulatory authority should not be lightly presumed, but also left substantial questions about the major questions doctrine unanswered. By skimping on statutory analysis and front-loading consideration of whether a case presents a major question, the also Court failed to provide much guidance for lower courts. While WV v. EPA represents a missed opportunity to clarify and ground the major questions doctrine, it remains a tremendously important decision, and will be cited routinely in legal challenges to new regulatory initiatives. While limiting the scope of Section 7411, the decision did not curtail the EPA's traditional air pollution control authorities, nor does it preclude the EPA from using such authorities to regulate GHGs. It does, however, make it more challenging for the EPA or other agencies to develop new climate change policies relying upon preexisting statutory authority directed at other problems.

I also blogged fairly extensively on the case. Some of the points I made in my posts made it into the article above, but some did not. Here are links to my various posts on WV v. EPA:

I also recommend Tom Merrill's series of posts about the case. I do not agree with him in every particular, but his posts are quite worthwhile, and we seem to reach the same general bottom line. As he argues in his final post, the real question in cases like WV v. EPA is whether Congress actually delegated the power asserted by the agency, and that is a question courts must answer--and should answer without taking the sort of major-question-shortcut the Court took in WV v. EPA. Tom makes the case for this approach in his new book on Chevron, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State. I make a more rudimentary argument for this sort of approach in my recent book chapter, A "Step Zero" for Delegations.