Summation of West Virginia v. Environmental Protection Agency, No. 20-1530

Today, the United States Supreme Court held that the Environmental Protection Agency may not coopt Section 111(d) of the Clean Air Act to “force a nationwide transition away from the use of coal.” West Virginia v. Environmental Protection Agency, No. 20-1530 (slip op. at 31). In this victory for Jackson Walker clients, the Court explained that a Congressional delegation of “unprecedented power” requires a clear statement that is simply not present in the Clean Air Act. Id. at 24 (quotation and citation omitted). This clear-statement requirement is an adoption of the major questions doctrine as an interpretive canon—a thumb on the scale when courts weigh the implications of statutory text. Today’s opinion restrains EPA’s power under the Clean Air Act. But the Court’s endorsement of the major questions doctrine has broad implications beyond the Clean Power Plan, the Clean Air Act, and the EPA. 

The major questions doctrine has emerged due to “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”  Id. at 20.  That is precisely what was at stake here: The EPA sought to compel reductions in carbon dioxide emissions by shifting power generation away from coal to other generation sources. In doing so, the EPA sought seize power beyond what Congress authorized.  Left unchecked, the EPA’s authority “could go further, perhaps forcing coal plants to ‘shift’ away virtually all of their generation,” causing coal plants to “cease making power altogether.”  Id. at 24. Even on the more tempered view, the EPA would be left to decide the practical feasibility of switching to non-coal generation sources before a grid collapse and “how high energy prices can go” before they are “unreasonably exorbitant.” Id. at 25.  

As the Court made clear, however, for decisions “of such magnitude and consequence,” federal agencies must have “more than a merely plausible textual basis for the agency action”  and “must point to clear congressional authorization for the power it claims.” Id. at 19 (internal quotation omitted). This reasoning is a resounding endorsement of the major questions doctrine as an interpretive canon: Congress may delegate “decision[s] of [great] magnitude and consequence” to administrative agencies, but it must do so clearly.  Id. at 31.  

This clear statement rule will have broad ramifications, reining in agency overreach. Other transformative regulation of “economic and political significance” beyond the “history and the breadth of the [agency’s] authority” could fall to future litigation.  See id. at 17.  And in anticipation of that litigation, agencies and presidential administrations may be less ambitious in future rulemakings.  This case is only the beginning.

Justice Gorsuch concurred in both the judgment and the opinion, joined by Justice Alito, expanding on the major questions doctrine. The doctrine, he writes, is essential to the separation of powers and the Court’s role to review acts of Congress, including nondelegation. And he explains that statutory text, its historical context, past agency interpretations of that text, and past agency action may all inform whether there has been a clear delegation. Meanwhile, Justice Kagan dissented with Justices Breyer and Sotomayor joining.  She charges the Court’s major-questions doctrine as a “magically appear[ing] get-out-of-text-free card.” Id. (Kagan, J., dissenting) (slip op. at 29). She would leave “for Congress (within extremely broad limits) to get to call the shots” on its own delegations.  Id. at 32.  It would be for Congress to wrest its delegated power back from the EPA, if it so chose.