By: Laura Christensen Garcia
At first glance, West Virginia v. EPA may seem like a run-of-the-mill administrative law case where a conservative majority has once again chipped away at the powers of the administrative state.[1] Yet, further analysis reveals a much more insidious strain of legal thought that highlights the political nature of the Supreme Court. Under the guise of the newly crafted “major questions doctrine,” the Court held that the Environmental Protection Agency (“EPA”) did not have the statutory authority to promulgate a generation-shifting emissions regulation program, the Clean Power Plan (“CPP”), because it displayed an extraordinary grant of regulatory authority over an issue of major economic and political significance.[2]
Perhaps the most disturbing aspect of the Court’s decision is how perfunctorily it dismisses the argument that the plaintiffs lacked standing.[3] Under the traditional doctrine of standing, a plaintiff must sufficiently allege an injury in fact that was caused by and is traceable to defendant’s actions.[4] Additionally, the alleged injury must be ripe, redressable, and is not moot.[5] The issue at the heart of West Virginia v. EPAwas the Clean Power Plan (“CPP”).[6] In 2015, the Obama-era EPA promulgated CPP to implement a generation-shifting plan to regulate emissions from power plants.[7] Essentially, over time the CPP would require power plants to shift from non-renewable sources of energy to renewables like solar and wind energy.[8] The EPA found its authority for the CPP in §111 of the Clean Air Act (“CAA”) which specifically allows the agency to regulate emissions “through the application of the best system for emission reduction. . .which has been adequately demonstrated.”[9] The CPP was immediately challenged in court, and in 2016 the Supreme Court issued a stay, barring implementation of the CPP.[10] When the Court heard West Virginia in 2021, the CPP had never actually been implemented. In fact, the goals outlined in the CPP had already been met––meaning even if it had been implemented, the power plants would not have suffered any redressable injury and the issue was moot. Therefore, barring an ideological fight over the power of the administrative state, and the EPA specifically, the issue before the Court was nonjusticiable.
In Massachusetts v. EPA (2007), another case that addressed the administrative authority of the EPA, Chief Justice Roberts dissented and argued that the issue of whether the EPA could regulate emissions across state lines was nonjusticiable.[11] Roberts also signed onto Scalia’s dissent, which argued in favor of agency deference on issues like emissions regulation.[12] Notably, the state of Massachusetts sued the Bush-era EPA for failure to regulate greenhouse gasses.[13] At the time Massachusetts v. EPA was decided, the composition of the Court was decidedly liberal. So, it makes sense that Scalia and Roberts were more comfortable granting deference to the Bush-era EPA rather than the more liberal and aggressive Biden-era EPA. Now, sixteen years later with a conservative majority on the court and a liberal EPA in power, Roberts no longer wishes to grant deference to the decision-making authority of administrative agencies.
Once the Court dismissed arguments that the case was moot, the majority in West Virginia relied heavily on a newly-developed doctrine called the “major questions doctrine.”[14] According to Roberts, a case is considered to involve a “major question” if an agency seeks to decide an extraordinary issue of major economic and political significance.[15] The doctrine, as articulated by the majority, is one grounded in precedent. The major questions doctrine, however, has appeared in only a handful of cases, each grounded in more specious reasoning than the previous.
The doctrine is only formally articulated in two per curiam decisions announced during the same term as West Virginia v. EPA. The first case held that the eviction moratorium promulgated by the CDC during the coronavirus pandemic was beyond the scope of the agency’s power due to its expansive and systemic nature.[16] The second case also dealt with a federal agency’s response to the coronavirus pandemic. In NFIB v. OSHA, the Court held that the workplace vaccine mandate promulgated by the Occupational Safety and Health Administration (“OSHA”) was also beyond the agency’s power due to the major political question at issue.[17] If any credence is to be granted to the major questions doctrine, one could argue that an eviction moratorium may be beyond the traditional realm of power Congress delegated to the Centers for Disease Control. Similarly, but slightly more attenuated, is the idea that Congress did not intend to give OSHA the authority to issue a vaccine mandate across all workplaces. However, the reasoning in each case is built as a justification for the next more specious application of the major questions doctrine. This house of cards leads the Court to the application of the major questions doctrine to the Clean Power Plan.
The Clean Power Plan, as Justice Kagan notes in her dissent, “falls within the EPA’s wheelhouse.” Justice Kagan aptly points out that the text of the Clean Air Act is quite explicit in its delegation of power to the EPA to address the systemic nature of air pollution.[18] Quoting Congress, Kagan writes that the “goal [of the Clean Air Act] was to ‘speed up, expand, and intensify the war against air pollution in all its forms.’”[19] Both the explicit text of the statute and implicit language around the passage of the CAA suggest that Congress intended the EPA to take urgent and systemic actions to reduce air pollution. The notion that Congress did not intend for the EPA to promulgate regulations like the CPP raises the question of what future agency actions will no longer be considered within the scope of their authority. Will, for example, the Court determine that OSHA can no longer issue sweeping workplace regulations due to the prevalence of remote work?
In West Virginia v. EPA, the Supreme Court issued a major blow to the administrative state, and ultimately to the ability of future generations to secure a hospitable planet and future. Ultimately, this case lays further groundwork for the development of a spurious doctrine that will lead to the crumbling of the administrative state. At a time when workers across the country are relying on federal agencies like the National Labor Relations Board, OSHA, and the EPA to guarantee safe workplaces and cities, the regulatory power of administrative agencies could not be more critical.
[1] West Virginia v. EPA, 142 U.S. 2, (2022).
[2] EPA, 142 U.S. at 25.
[3] Id. at 20.
[4] There must be a live case or controversy that can be redressed through judicial action. See generally, Poe v. Ullman, 367 U.S. 497 (1961).
[5] Lujan v. Defenders of Wildlife, 504 U.S. 555, 561– 562 (1992).
[6] EPA, 142 U.S. at 8.
[7] Id.
[8] Id.
[9] §111 42 U.S.C.A. § 7409.
[10] EPA, 142 U.S. at 2.
[11] Massachusetts v. EPA, 127 U.S. 536 (2007).
[12] EPA, 127 U.S. at 550.
[13] EPA, 127 U.S. at 510.
[14] West Virginia v. EPA, 142 U.S. at 25.
[15] Id.
[16] Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al., 594 U.S. 1 (2021) .
[17] National Federation of Independent Business, et al v. Department of Labor, Occupational Safety and Health Administration et al., 595 U.S. 1 (2022).
[18] West Virginia v. EPA, 142 U.S. at 69.
[19] Id. at 61.