The Supreme Court wrapped up its history-making term last week with a shot across the bow at government regulatory agencies. One of its two final rulings, West Virginia v. EPA, saw the court rule 6-3 along ideological lines that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants.
Ruling for the state of West Virginia, the conservative justices struck down EPA standards designed to fight climate change by reshaping electricity grids. Such standards qualify as “major questions,” wrote Chief Justice John Roberts in his majority opinion, requiring explicit authorization by Congress.
Much of the interest in the case comes from those who fear the United States will no longer be able to meet its climate change commitments. In her dissent, Justice Elena Kagan wrote that the court was stripping the EPA of the power Congress gave it to respond to “the most pressing environmental challenge of our time.” President Biden, in a statement issued at the White House Thursday, described the ruling as “another devastating decision that aims to take our country backwards.”
The opinion completed a term in which an already conservative court lurched further to the right, striking down Roe v. Wade, expanding gun rights, embracing religious expression – and now cracking down on the so-called “administrative state.” Careful vetting of three justices appointed by former president Donald J. Trump by the conservative Federalist Society produced results long dreamed of by self-styled “originalist” theorists.
Laurence Tribe, University Professor Emeritus of Constitutional Law at Harvard, told RealClearPolitics that the current court “is going rogue and seems almost drunk with the power acquired with its stacking by Trump and his three new Justices.”
West Virginia’s victory may be only an opening salvo in a conservative war against the active federal government called into existence during the Great Depression. If every significant new challenge requires new Congressional authorization to act – as the Roberts opinion suggests – critics fear the executive branch could become just as gridlocked as the legislative branch.
Roberts pointed in this direction by describing the dispute at hand as a “major questions case.” The major questions doctrine requires that agencies have explicit statutory authorization from Congress to make “decisions of vast economic and political significance.” The court “typically greet[s] assertions of extravagant statutory power over the national economy with skepticism,” Roberts wrote. To overcome that skepticism, “the Government must – under the major questions doctrine – point to clear congressional authorization to regulate in that manner.”
The major questions doctrine plays an important role in administrative law, because it allows Congress to find, in theory, a workable space between an unconstitutional delegation of power – a violation of Article I Section I of the Constitution, which states that “All legislative powers herein granted shall be vested in a Congress of the United States” – and a complete ban on delegation that would leave an already inactive Congress swamped with day-to-day responsibility for government agencies.
One traditional view holds that Congress sets up a target, but agencies decide how to hit the target. In the West Virginia case, the EPA’s target was the reduction of carbon emissions. The EPA aimed to hit that target by requiring a gradual transition to green energy.
New York University Law Professor Roderick M. Hills explained to RCP that the Roberts ruling suggests that Congressional legislation “doesn’t only contain the target,” it also regulates the means that the agency can use. So, if the agency chooses a novel or controversial method of achieving the congressionally specified goal, it might be going outside the statute.
The issue with a doctrine that says an agency cannot do anything outside its statutory authorization, Hills said, “is that when a new problem arises, agencies are helpless. And the whole point of creating an agency is to respond to unforeseen circumstances.”
The modern administrative state was born during the New Deal Era, when President Franklin D. Roosevelt sought a way to respond to the economic crisis quickly, bypassing bureaucratic red tape – or even congressional intent.
There is always a trade-off, Hills said, between “lots and lots of democratic deliberation, and fast action. It’s like Elvis Presley said, a little less conversation, a little more action.” If the court requires agencies to go to Congress each time they seek new ways to address issues of major economic and political significance, Hills asserts, “We’re never going to do anything to respond to new problems, because Congress is mired in gridlock.”
He has a point, given that Congress currently has a 4% success rate of turning bills into laws. Some would argue that the slow pace of the congressional process is not only desirable, but constitutionally obligatory. Others think it’s unrealistic and, in some ways, undemocratic.
Since the 1819 landmark decision McCulloch v. Maryland, the court has held that “the modern administrative state is constitutional,” Tribe told RCP. That case affirmed that Congress can turn over responsibility for detail-oriented action to freestanding government agencies. But it is unclear what is a detail and what is a significant, or “major,” issue.
“The Constitution doesn’t say anything about major questions,” Hills told RCP. “If you think the most valuable thing is to have every issue passed upon by elected representatives, [the court] is right. If you think the most valuable thing, or at least an equally valuable thing, is to actually have policy that’s responsive to problems, then [the court] is wrong.”
That said, for those who disagree with the EPA ruling, there’s a straightforward remedy that isn’t necessarily available when it comes to the court’s recent gun control decisions, or the religious freedom cases. That’s because EPA’s regulatory overreach on climate change – at least according to the Supreme Court – did not run afoul of the pesky First Amendment or Second Amendment.
In that sense, West Virginia v. EPA has something in common with the Dobbs decision: namely, the obvious possibility of a legislative fix. In the past two weeks, politicians as varied in their approach to abortion as Mike Pence, Nancy Pelosi, and Joe Biden have proclaimed that Roe v. Wade is “on the ballot” this coming November. With gasoline over $5 per gallon, it remains to be seen how much either political party will play up greenhouse gases, but after last week, the reach and scope of the Environmental Protection Agency is on the ballot, too.