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 The Supreme Court wrapped up its history-making term last week with a shot
across the bow at government regulatory agencies. One of its two final rulings,
West Virginia v. EPA, saw the court rule 6-3 along ideological lines that the
Clean Air Act does not give the Environmental Protection Agency broad authority
to regulate greenhouse gas emissions from power plants.
Ruling for the state of West Virginia, the conservative justices struck down EPA
standards designed to fight climate change by reshaping electricity grids. Such
standards qualify as “major questions,” wrote Chief Justice John Roberts in his
majority opinion, requiring explicit authorization by Congress.
Much of the interest in the case comes from those who fear the United States
will no longer be able to meet its climate change commitments. In her dissent,
Justice Elena Kagan wrote that the court was stripping the EPA of the power
Congress gave it to respond to “the most pressing environmental challenge of our
time.” President Biden, in a statement issued at the White House Thursday,
described the ruling as “another devastating decision that aims to take our
country backwards.”
The opinion completed a term in which an already conservative court lurched
further to the right, striking down Roe v. Wade, expanding gun rights, embracing
religious expression – and now cracking down on the so-called “administrative
state.” Careful vetting of three justices appointed by former president Donald
J. Trump by the conservative Federalist Society produced results long dreamed of
by self-styled “originalist” theorists.
Laurence Tribe, University Professor Emeritus of Constitutional Law at Harvard,
told RealClearPolitics that the current court “is going rogue and seems almost
drunk with the power acquired with its stacking by Trump and his three new
Justices.”
West Virginia’s victory may be only an opening salvo in a conservative war
against the active federal government called into existence during the Great
Depression. If every significant new challenge requires new Congressional
authorization to act – as the Roberts opinion suggests – critics fear the
executive branch could become just as gridlocked as the legislative branch.
Roberts pointed in this direction by describing the dispute at hand as a “major
questions case.” The major questions doctrine requires that agencies have
explicit statutory authorization from Congress to make “decisions of vast
economic and political significance.” The court “typically greet[s] assertions
of extravagant statutory power over the national economy with skepticism,”
Roberts wrote. To overcome that skepticism, “the Government must – under the
major questions doctrine – point to clear congressional authorization to
regulate in that manner.”
The major questions doctrine plays an important role in administrative law,
because it allows Congress to find, in theory, a workable space between an
unconstitutional delegation of power – a violation of Article I Section I of the
Constitution, which states that “All legislative powers herein granted shall be
vested in a Congress of the United States” – and a complete ban on delegation
that would leave an already inactive Congress swamped with day-to-day
responsibility for government agencies.
One traditional view holds that Congress sets up a target, but agencies decide
how to hit the target. In the West Virginia case, the EPA’s target was the
reduction of carbon emissions. The EPA aimed to hit that target by requiring a
gradual transition to green energy.
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New York University Law Professor Roderick M. Hills explained to RCP that the
Roberts ruling suggests that Congressional legislation “doesn’t only contain the
target,” it also regulates the means that the agency can use. So, if the agency
chooses a novel or controversial method of achieving the congressionally
specified goal, it might be going outside the statute.
The issue with a doctrine that says an agency cannot do anything outside its
statutory authorization, Hills said, “is that when a new problem arises,
agencies are helpless. And the whole point of creating an agency is to respond
to unforeseen circumstances.”
The modern administrative state was born during the New Deal Era, when President
Franklin D. Roosevelt sought a way to respond to the economic crisis quickly,
bypassing bureaucratic red tape – or even congressional intent.
There is always a trade-off, Hills said, between “lots and lots of democratic
deliberation, and fast action. It’s like Elvis Presley said, a little less
conversation, a little more action.” If the court requires agencies to go to
Congress each time they seek new ways to address issues of major economic and
political significance, Hills asserts, “We’re never going to do anything to
respond to new problems, because Congress is mired in gridlock.”
He has a point, given that Congress currently has a 4% success rate of turning
bills into laws. Some would argue that the slow pace of the congressional
process is not only desirable, but constitutionally obligatory. Others think
it’s unrealistic and, in some ways, undemocratic.
Since the 1819 landmark decision McCulloch v. Maryland, the court has held that
“the modern administrative state is constitutional,” Tribe told RCP. That case
affirmed that Congress can turn over responsibility for detail-oriented action
to freestanding government agencies. But it is unclear what is a detail and what
is a significant, or “major,” issue.
“The Constitution doesn’t say anything about major questions,” Hills told RCP.
“If you think the most valuable thing is to have every issue passed upon by
elected representatives, [the court] is right. If you think the most valuable
thing, or at least an equally valuable thing, is to actually have policy that’s
responsive to problems, then [the court] is wrong.”
That said, for those who disagree with the EPA ruling, there’s a straightforward
remedy that isn’t necessarily available when it comes to the court’s recent gun
control decisions, or the religious freedom cases. That’s because EPA’s
regulatory overreach on climate change – at least according to the Supreme Court
– did not run afoul of the pesky First Amendment or Second Amendment.
In that sense, West Virginia v. EPA has something in common with the Dobbs
decision: namely, the obvious possibility of a legislative fix. In the past two
weeks, politicians as varied in their approach to abortion as Mike Pence, Nancy
Pelosi, and Joe Biden have proclaimed that Roe v. Wade is “on the ballot” this
coming November. With gasoline over $5 per gallon, it remains to be seen how
much either political party will play up greenhouse gases, but after last week,
the reach and scope of the Environmental Protection Agency is on the ballot,
too.
Adeline Von Drehle is a rising senior at the University of
Missouri studying American history. She will spend the coming year as an Oxford
fellow at Corpus Christi College.
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