“The Supreme Court’s ruling in West Virginia vs. EPA is another devastating decision that aims to take our country backwards.” President Joe Biden
“Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal.” Professor Gillian Metzger
Too Long, Didn’t Read
After a Supreme Court term like no other, even the decision in West Virginia v. Environmental Protection Agency that threatens to exacerbate climate change must struggle for bandwidth and attention. Some observers almost sighed with relief: the Court’s decision could have been even worse. Chief Justice John Roberts’s majority opinion did not overrule Chevron deference. It did not find agency officials unconstitutional. It did not ban all regulation of greenhouse gases. Amid the myriad tumults of 2022, such facts might offer some degree of hope or solace. Perhaps the center did somehow hold? Maybe things aren’t as bad as they seem?
Not so fast. The Supreme Court’s conservative supermajority is a new institutional animal — less than two years old — that all of us are only beginning to understand. Close attention to West Virginia is important not only to interpret what happened, but also to predict what will keep happening throughout the Supreme Court’s new and lengthy era of radicalism.
Clean Air Matters
The Clean Air Act is complex, but the short version is that Congress told the Environmental Protection Agency (EPA) to create numerical “standards of performance” (SOPs) for certain kinds of pollution, and states have to use those SOPs in their own plans for environmental compliance.
Congress also prescribed a process for creating SOPs. First, the EPA has to identify the “best system” for reducing emissions. Second, the EPA sets quantitative pollution limits based on what its “best system” could achieve. As an important detail, states are never required to follow the EPA’s step-one “system” for reducing emissions; they can satisfy step-two standards by using whatever mechanism they prefer.
The EPA issued an SOP for greenhouse gas emissions that come from existing power plants. The EPA described its “best system” for pollution reduction as follows: (i) improve fossil-fuel efficiency to generate more power with less wasted heat, (ii) increase the use of natural gas instead of coal, and (iii) increase the use of renewable energy sources. The EPA’s quantitative standards were designed to fit what that “best system” could accomplish. (E.g., 1,305 pounds of carbon dioxide per megawatt-hour for existing fossil-fuel steam facilities.) Such final standards relied mostly on parts (ii) and (iii) of the EPA’s system because many coal-burning plants have already implemented heat-saving technologies.
Right-Wing Theory as Legal Doctrine
The Supreme Court invalidated the EPA’s SOP using a new doctrinal test: the “major questions doctrine.” This requires a clear and specific statement from Congress before courts let agencies make “extraordinary” new decisions that have “economic and political significance.” In previous decades, most scholars denied the existence of such agency-restrictive doctrines, and they also criticized such possibilities as incoherent. By contrast, modern conservatives and academics have joined with Trump-era bureaucrats and individual judges to promote “major question” theories and limit agencies’ power. The major questions doctrine — wherever it applies — means that any “tie” concerning statutory interpretation should be resolved against the existence of agency authority.
West Virginia was a big triumph for right-wing legal movements. The Court held that the EPA’s first-step analysis of a “best system” can only consider clean-air technologies at a particular facility. The “best systems” cannot include structural efforts to shift from coal to natural gas or renewables. For the EPA to create a new SOP, the agency may consider “inside-the-fenceline” measures to improve heat efficiency, but not “outside-the fenceline” measures like cap and trade. The statutory noun “system” silently excludes “broad” systems, which apparently need “clear congressional authorization” beyond the word “system” itself.
Before President Trump’s Supreme Court appointments, Chevron deference to agencies would have supported the EPA’s broader interpretation of “system” as presumptively authoritative. Under the longstanding Chevron approach, agencies could interpret and reinterpret ambiguous statutory words like “system” to include a diverse range of meanings over time. For many decades, even before Chevron, administrative flexibility helped Republican and Democratic presidents pursue their policies without having to pass new legislation, from the Reagan Revolution to environmental sustainability. Agencies could rely on old legislation to meet new challenges, and courts often stood to the side.
By contrast, West Virginia’s major questions doctrine rejects language created by Congress itself. The Supreme Court’s new demand for “clear statutory language,” instead of “statutory language,” is inconsistent with critiques of Chevron from Justice Brett Kavanaugh, as well as prior votes from Justice Clarence Thomas and Chief Justice Roberts, not to mention ideas about statutory “textualism” that are routinely praised (though only sometimes applied) in conservative circles.
The biggest problem, however, does not involve consistency or coherence. The West Virginia decision implies that Congress factually does not, and normatively should not, enact broad statutory mandates that allow agencies to confront unforeseen and unforeseeable problems or crises. Regardless of whether the major questions doctrine is applied opportunistically or across the board, that principle allows the Court to invalidate almost any agency action that has “economic and political significance” if the agency’s efforts involve arguably “new” problems or solutions. The Trump-era Court has already held that COVID cannot justify an eviction moratorium or (more implausibly) workplace vaccine policies. West Virginia goes farther, limiting the Clean Air Act’s relevance to the greatest environmental crisis in history.
Any factual presumption that Congress does not or cannot use agencies to address “major questions” of “economic and political significance” is absurd. From air safety and stock markets to immigration and hurricanes, Congress often delegates — through properly enacted statutes — the country’s urgent and dynamic public issues for specifically designed agencies to regulate. Contrary to the major questions doctrine, Congress frequently accomplishes such delegations through broad language that allows unexpected changes in policy over time. The major questions doctrine thus yields a mixture of irony and tragedy, limiting Congress’s ability to authorize agency action when the public stakes are highest and the needs for flexibility are greatest.
There is no time to relitigate all the legal arguments from West Virginia. (The government’s brief offers appreciable depth along with Justice Elena Kagan’s dissent and the D.C. Circuit’s impressive opinion.) Let me add two points. First, even though Chief Justice Roberts cites a few cases to support the Court’s new principle, the small group of pre-Trump examples are factual and doctrinal outliers. In FDA v. Brown & Williamson, for example, the Court held that nicotine unambiguously is not a “drug” and that cigarettes unambiguously are not “drug delivery devices.” Likewise in Gonzales v. Oregon, (which I helped litigate in the 9th Circuit), the Supreme Court held that restricting physician-assisted suicide unambiguously is not a “legitimate medical purpose.” Both of those results seem debatable, to say the least.
Yet even if such cases were correctly decided, the Court’s reasoning was highly fact-specific. West Virginia’s effort to reorganize a small group of oddball decisions with a grand precedential label — the major questions doctrine — makes the old cases much more than they were. West Virginia’s threat to administrative agencies is simultaneously new and obvious, even though its doctrinal scope and practical effects are dangerously vague.
Second, the Court’s distinction between facility-based technological “systems” for pollution control and structural “systems” for non-coal energy is substantively flawed. The key fact is that (as discussed above) the Clean Air Act requires the EPA to create SOPs, and it also requires states to comply with SOPs. When states implement SOPs, local environmental law can use any kind of system to reduce pollution. States are not limited to the use of technological mechanisms at individual plants. On the contrary, a state might apply cap and trade procedures to regulate polluters in combination, or it might require generation-shifting technologies like natural gas or renewable energy. Any of those state law mechanisms — whether considered “narrow” or “broad” — can be used to satisfy a federally mandated SOP.
Given that framework, the EPA’s scope for analyzing the “best system” to design SOPs should match the states’ scope of flexibility in satisfying SOPs. Because states can certainly use “outside-the-fence” pollution controls for compliance with SOPs, it makes perfect sense for the EPA to consider “outside-the-fence” controls from the start. The Clean Air Act’s goal is to have the EPA create numerical SOPs that states can satisfy, and that would happen best if the agency could use the same policy toolkit to design federal standards that states use to implement them.
Deconstructing Administrative Democracy
When Steve Bannon memorably called for “deconstruction of the administrative state,” he was advocating a mostly political event, instead of a legal one. Nevertheless, it is President Donald Trump’s judicial appointees who are responsible for carrying that project forward to the next decade and beyond. The term “administrative state” is quite popular in conservative circles because of its coldly abstract tone, rhetorically separate from the “people’s government” and the venerable Constitution. Such Trumpian themes of anti-elitism — whatever their substantive merit — seem out of place in West Virginia, where unelected judges weakened landmark statutes and departed from precedents in order to threaten popular environmental policies.
Conservative justices might disapprove of big federal legislation like the Clean Air Act, the Occupational Safety and Health Act, or the Voting Rights Act. But all of those statutes — including their ecosystem of agency authority, flexible statutory interpretation, and quick responses to unforeseen problems and crises — are the direct and fundamental products of American democracy. Unlike the major questions doctrine. In West Virginia and elsewhere, the radically conservative Supreme Court has become a legal savior that most Americans never requested or wanted.
One last point about climate change. The Supreme Court decided to apply its newly discovered “major questions doctrine” to the EPA in West Virginia because of the “vital considerations of national policy implicated in deciding how Americans will get their energy.” The Court could not believe that Congress would give the EPA such profound and costly responsibilities. “The basic and consequential tradeoffs involved in such a choice are ones that Congress would likely have intended for itself.”
That vision of environmental policy, including climate change, is terribly flawed. The EPA and Clean Air Act have always and routinely involved “basic and consequential tradeoffs,” routinely balancing the business needs of capital and labor against the lives and health of individuals. When the Court insulated the EPA from such responsibilities, it kept the agency from doing its job. The Court emphasized the EPA’s asserted “power over the national economy” as the agency sought to regulate climate change. But the Court didn’t mention its own power over the national economy (and more) when it chose to hamstring agency action. Does anyone really think that “basic and consequential tradeoffs” in environmental policy should be decided by courts? At least the EPA’s power to act was supported by explicit congressional authorization “taking into account the cost of achieving such reduction and any nonair quality health and environmental impact.” The Court’s power, by comparison, had nothing but six judicial votes.