Last week, the United States Supreme Court held in West Virginia v. Environmental Protection Agency (No. 20-1530) that EPA may not rely upon Section 111(d) of the Clean Air Act to “force a nationwide transition away from the use of coal.” Citing the “major questions doctrine,” the Court explained that a Congressional delegation of “unprecedented power” requires a clear statement that is simply not present in the Clean Air Act. 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. The 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 decision arose from the EPA seeking to compel reductions in carbon dioxide emissions by shifting power generation away from coal to other generation sources. In doing so, the Court found that the EPA seized power beyond what Congress authorized in the Clean Air Act, citing “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” The Court found that, 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.” 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.”
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.” This reasoning is a strong 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.
This clear statement rule will have broad ramifications related to agency rulemaking authority.
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. 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.” She would leave “for Congress (within extremely broad limits) to get to call the shots” on its own delegations.
