In his State of the Union address, President Biden laid out a vision of a cleaner, greener future — with electric vehicles supported by a nationwide network of 500,000 charging stations. Unfortunately, the Supreme Court’s 2022 ruling in West Virginia v. EPA may serve as a legal basis to strike down the Environmental Protection Agency’s (EPA) efforts to increase the number of electric vehicles on the road. More broadly, this decision could make it much more difficult for the EPA — and other federal agencies — to protect the public.
The Supreme Court’s West Virginia decision codifies the “major questions” doctrine — which holds that agencies must have specific congressional authorization for policies with extraordinary economic and political significance. The Supreme Court rejected EPA’s Clean Power Plan, asserting that the agency lacked clear congressional authority to devise the plan. The major question at issue in the West Virginia case was what constitutes the “best system of emission reduction” (BSER) for the power sector.
The concept of BSER dates to the Clean Air Act of 1970, in which Congress sought to reduce emissions from a wide range of industrial sectors. Of course, the best way to reduce emissions varies by sector and over time — what was “best” in 1970 won’t cut it 50 years later. That’s why Congress delineated certain factors that should be considered (including cost, effectiveness and environmental impact) and left it to EPA to decide which systems could best reduce emissions.
In West Virginia v. EPA, the Supreme Court ruled that EPA must obtain congressional approval to act on BSER, ignoring almost 40 years of precedent to defer to EPA in acting on BSER. This requirement unduly burdens Congress while making it impossible for the EPA to act. Indeed, if “clear congressional authority” is needed each time a decision is made as to what constitutes BSER, the process would grind to a halt. That is why Congress in 1970, 1977 and 1990 expressly left it to EPA to figure out the answer for each sector over time.
Moreover, it’s not a given that the Clean Power Plan would have “extraordinary economic and political significance.” Even the Trump administration, which opposed former President Obama’s Clean Power Plan, acknowledged that the plan would not have significant impact. Indeed, the plan affirmed actions the affected industries were already taking, which is why those industries overwhelmingly supported it.
Now that the “major questions” doctrine has become law, it can be applied to curtail a broad range of governmental actions. For example, it could undermine the Security and Exchange Commission’s (SEC’s) efforts to inform its investors of the risks of climate change. The Supreme Court could rule that the SEC statutes designed to provide investors with material information do not explicitly mandate climate disclosures. Future regulations proposed by EPA to address carbon dioxide from power plants, cars and trucks might also be subject to scrutiny as to whether there is “clear congressional authority” under the Clean Air Act for the terms of the regulations.
And application of the “major questions” doctrine can reach well beyond the environmental area. It could apply to rules banning the use of youth-friendly flavored tobacco, or to proposed rules protecting access to abortion rights in the wake of the recent Supreme Court’s Dobbs decision, which overturned Roe v. Wade.
Chillingly, the West Virginia case is the first in a line of cases that the Supreme Court is now ready to decide, which are directed at scrapping the tools agencies traditionally use to protect the public. One of these cases will decide whether the SEC has authority to bring an enforcement action. The results will go to the heart of how federal agencies ensure compliance with its regulations. Another case will decide whether California’s legislation authorizing the regulation of pork products sold in its state is valid. The court will also decide whether congressional statutes requiring administrative review of an agency decision are constitutional, potentially further limiting the review role of an administrative agency.
Based on views they have expressed, it appears that six Republican-appointed Supreme Court justices would further curtail the role of administrative agencies. In their concurring opinion on the West Virginia ruling, Justices Neil Gorsuch and Samuel Alito express concerns about the explosive growth of the broader administrative state and raise the “major questions” doctrine as a prime vehicle for its curtailment. Justices Clarence Thomas and John Roberts have also voiced concerns about the administrative state. The American Enterprise Institute, a conservative think tank, believes Justice Kavanaugh will have a major influence in limiting the role of administrative agencies. The last member of the majority in the West Virginia decision, Justice Amy Coney Barrett, demonstrated her willingness to ignore precedent with the Dobbs decision.
The Supreme Court is poised to hobble administrative agencies’ ability to protect the public, and to strip them of the tools they need to function. Doing so would undermine a half-century of progress toward protecting public health and the environment — and sabotage efforts to preserve a stable climate for future generations.
Dan Reich was an assistant regional counsel at EPA Region 9 in San Francisco for 27 years. He also served as a trial attorney with the U.S. Department of Justice before retiring in 2017 with 33 years of federal service.