Major Questions, Major Problems
On Monday, the Supreme Court will hear oral argument on the scope of EPA’s authority to regulate greenhouse gas emissions from coal-fired power plants, which are responsible for about 15% of the nation’s planet-warming emissions. At stake is not only the extent of the government’s power to mitigate an important wedge of the climate crisis, but also basic foundations of administrative law.
The case, West Virginia v. EPA, concerns the Trump Administration’s repeal of the Obama Administration’s Clean Power Plan — which aimed to reduce power plants’ carbon dioxide emissions to 32% below 2005 levels by 2030 — and its ineffectual replacement, the Affordable Clean Energy Rule. After the U.S. Court of Appeals for the D.C. Circuit struck down these Trump Administration actions as unlawful, EPA confirmed that it would start with a clean slate to issue a new rule rather than bringing back the Clean Power Plan.
Despite this clarity, several parties successfully petitioned the Supreme Court for review of the lower court’s decision. They argue, among other matters, that the Clean Power Plan raised a “major question” and thus could not have been lawfully issued absent more explicit direction from Congress.
For decades the Supreme Court invoked the major questions doctrine sparingly, reserving it for assertions of agency authority that fundamentally restructured a statutory program. And with good reason. It would be impossible, and inadvisable, for Congress to speak to every detail of the modern regulatory state. Instead, Congress relies on agencies with their particular sets of expertise to determine how best to use their legislatively granted authorities.
This rarely used doctrine is hardly a good fit for the case at hand. The Supreme Court has already recognized that the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from power plants under the very provision at issue. This leaves petitioners with a much narrower question: how can EPA accomplish that regulation? This is the type of question that Congress generally delegates to agencies.
More importantly, since neither the Clean Power Plan nor the Affordable Clean Energy Rule are in effect, and EPA has committed to issue a new rule on a blank slate, petitioners seek a prohibited advisory opinion on the scope of EPA’s future rulemaking. Such a future rulemaking may not even raise the questions presented by this case, making this ruling potentially irrelevant.
Petitioners Seek Unworkable Triggers for the Major Questions Doctrine
Despite the unlawful nature of this request, several petitioners press the Supreme Court to not only apply, but to expand the major questions doctrine by using a kitchen sink of factors, including several that the Court has not historically treated as relevant to a major question. Petitioners also ask the Court to treat cost, failed legislation, and public salience as triggers in a manner that departs from past practice.
An expanded recasting of the major questions doctrine on the basis of petitioners’ unworkable factors would lead to a variety of problematic consequences, as explained in detail in the amicus brief of Professor Richard Revesz and summarized below. (Professor Revesz is the director of the Institute for Policy Integrity, which served as his co-counsel on the brief.)
First, petitioners point to the Clean Power Plan’s supposed costs (had it taken effect) as evidence of a major question. But when EPA repealed the Clean Power Plan, it found the rule would have had no costs at all due to market shifts that had put the nation on track to reach the Clean Power Plan’s goals absent any regulation. Since the Supreme Court looks to the repeal record, application of the major questions doctrine on the basis of cost would be nonsensical in this case. Even if they could use outdated estimates from the Clean Power Plan’s promulgation, EPA’s 2015 estimates were in line with those for other regulations from both EPA and other agencies.
Moreover, setting a cost trigger for the major questions doctrine would produce problematic outcomes that undermine rational decision-making. Such a framework would incentivize agencies to break with common sense and decades-long regulatory practice to “maximize the net benefits” as directed by Executive Orders dating back to the Reagan administration. Such a cost trigger would also perversely incentivize agencies to split up costly rules into many smaller rules. The major questions doctrine cannot support a fiction that Congress meant to authorize such a rule in multiple parts that it would not authorize in one. And it would target expensive but non-transformative rules in larger industries while likely preserving relatively inexpensive but transformative rules in smaller industries.
Second, petitioners suggest that failed climate change legislation indicates a major question. Yet as recently as 2020, the Supreme Court dismissed the relevance of post-enactment legislative developments as a tool of statutory interpretation, finding that failed legislative efforts offered “no authoritative evidence” of the intent of a previous Congress. A test based on sustained legislative attention fares even worse. Over the past 20 years, Congress has enacted roughly 5% of the over 125,000 bills introduced. Recognizing all of these bills as indicative of a major question would extend the doctrine explosively.
Third, petitioners suggest that public salience could signal a major question, highlighting such factors as public comments, presidential statements, and litigation over the Clean Power Plan. But none of these are defensible. A Senate report revealed that the public comment process is plagued by mass comments, fraudulent or mal-attributed comments, and computer-generated comments. For example, of the almost 24 million comments submitted on the Trump administration’s proposed repeal of the net-neutrality rule, “nearly eight million comments came from email addresses associated with fakemailgenerator.com and more than 500,000 came from Russian email addresses.” Such fake comments cannot be a relevant gauge of public will, and ascribing them interpretive importance would perversely incentivize their increased submission.
The other metrics for public salience fare no better. In recent years, litigation over important rules promulgated by administrations of both parties has become routine. Similarly, presidents of both parties regularly trumpet the importance of their regulatory policies for many reasons, including to demonstrate their administration’s achievements, secure their legacy, or build support for a reelection campaign. None of these criteria speak to congressional intention when defining the scope of agency authority.
Relying on these factors would expand the doctrine into virtually every area of public policy and apply to rules that the Supreme Court has recently reviewed without consideration of such factors. For example, the Supreme Court allowed the Department of Homeland Security’s 2019 regulation defining “public charge” to operate with a concurrence emphasizing its extensive associated litigation, which included nine related lawsuits by 21 states and numerous groups representing the regulated community.
Falling back on some more general public-interest indicator would also prove impossible to administer. For example, such a framework would authorize a rule during a period of public disinterest, but as public attention grows over time an agency’s authority would erode. Agencies cannot act on the basis of such fluctuating authorization, nor is there any indication that Congress intended them to. Moreover, an agency would have no means to track the vagaries of public will or determine when the tide of public attention rises above the critical threshold.
To expand the major questions doctrine on the basis of these unworkable factors would hamstring the regulatory regime, create uncertainty for regulated parties, and upset congressional expectations regarding agency authority that underlie past legislation. But the Supreme Court is not bound to these destructive outcomes. Since petitioners ask for an unlawful advisory opinion, the Court should dismiss the case as improvidently granted without reaching the merits.
