Posted on 16 February 2022 by Guest Author

This is a re-post from Yale Climate Connections by Lexi Smith

The Supreme Court in late February is to hear West Virginia v. EPA, a case challenging the Environmental Protection Agency’s authority to regulate greenhouse gasses as pollutants. This site in November explored best- and worst-case scenario outcomes from the perspective of climate action advocates based on arguments in initial briefs filed by parties to the case.

This update surveys some of the key legal questions on which the case may turn, including those detailed in a new round of briefs from the litigants and from outside groups.

Standing, in absence of an adopted regulation

The Court’s decision to hear West Virginia v. EPA in the first place was controversial among some in the legal community and, in particular, among climate action proponents, and not just because of its environmental implications.

The case to be argued before the Supreme Court on February 28 concerns the Clean Air Act provision that the Obama administration relied on to create the Clean Power Plan regulation. The Trump administration later repealed and replaced that regulation, substituting the weaker Affordable Clean Energy rule, which the D.C. Circuit vacated.

The groups challenging the EPA’s authority in West Virginia v. EPA are essentially anticipating the possibility that the Biden administration will use the same provision of the Clean Air Act to put forward new greenhouse gas regulations on coal-fired power plants.

That “anticipatory” aspect of the case is where things get complicated procedurally. To bring a lawsuit in federal court, plaintiffs must establish they have “standing.” Standing requires that a party show that they have been injured, that the person or institution they are suing caused the injury, and that the courts can redress the injury. Courts generally reject suits that deal with speculative injuries based on the view that under the Constitution they are to address only live “cases or controversies.” In other words, the federal courts cannot issue “advisory opinions” about situations, in this case a federal regulation not yet actually adopted or “promulgated.”

The Biden EPA argued in a recent brief that the challengers in this case do not have standing because there is no EPA rule currently in place that uses the Clean Air Act provision in question to regulate greenhouse gasses: The EPA brief argues that the challengers’ injury is speculative. As the brief puts it, the challengers’ “real concern is that the EPA might incorporate some features of the [Clean Power Plan] into a future … rule. But the contours of such a rule are uncertain.”

This argument presents a neat and easy way for the Supreme Court to hear the case without deciding its merits: The Court could decide it on standing grounds without deciding any other questions presented. Of course, the Court could later choose to hear a future case challenging eventual Biden administration greenhouse gas regulations if and when they are promulgated. 

Such an approach might appeal to some of the moderate conservative Justices, who tend to favor “judicial modesty” and often support dismissing cases on grounds that the Court does not have the power to hear them. And the liberal Justices might support such a ruling because it would minimize potential damage both to the EPA and to the administrative state (more on that below).

But the Court chose to hear the case, doing so through its internal voting system that requires at least four votes to put West Virginia v. EPA on the docket. The exact rationale for that decision is speculative, but the case is likely attractive to conservatives because it presents an opportunity to limit the power of federal agencies, which some conservative jurists see as an unconstitutional expansion of government power. Presumably at least four Justices voted in favor of hearing the case so it can be considered on its merits, rather than dismiss it on grounds of lack of standing. The key question then involves whether those who seek to limit agency power can reach a five-vote majority on the nine-member Court. If not, a decision on standing grounds seems a likely outcome.

‘Major questions’ doctrine: Congress to make most-important decisions itself?

On the theme of limiting the power of federal agencies, one argument was made more frequently and forcefully than any other in the challengers’ and their supporters’ briefs: that EPA lacks authority to regulate greenhouse gasses because of the “major questions doctrine.”

That admittedly vague doctrine essentially suggests that courts should presume that Congress wants to make the most important policy decisions itself, rather than delegating them to Executive branch agencies.

For those wanting to significantly curtail federal agencies’ power, the reasoning goes like this:

1) a statute is ambiguous about whether an agency has been delegated decision-making authority; and

2) granting the agency that authority would allow it to address a major question.

In that case, courts should assume that Congress did not delegate the authority. In other words, Congress would not hide elephants in mouseholes: It would speak clearly if it meant to delegate away its authority on a question as significant or as “major” as that involving greenhouse gas regulation.

This “major questions” issue is closely related to the nondelegation doctrine, discussed in this site’s earlier analysis on this case. To summarize, the nondelegation doctrine argues that Congress cannot constitutionally delegate its lawmaking power to federal agencies. But although the nondelegation and major questions doctrines are related, deciding the pending case on “major questions” grounds could be less damaging to Executive branch agency authority more broadly.

If the Supreme Court decides the case on grounds of the major questions doctrine, the precedent would be limited to circumstances where an ambiguous law is used to justify exercise of agency authority on a major question. In other words, Congress could still delegate power over major questions to agencies, but it would have to say so explicitly in the relevant law.

In contrast, if the Court decides the case on nondelegation grounds, the Court would be saying there’s a (heretofore largely unenforced) constitutional limitation on Congress’s ability to delegate power to agencies. If the Court decides the case that way, the argument would ensue that Congress could not delegate power over major questions at all, no matter how explicitly it tried to do so.

Making predictions about major Supreme Court decisions is a risky business, but the Court might well favor a major questions approach over a nondelegation approach. Some of the Court’s more conservative Justices may wish to enforce the nondelegation doctrine more forcefully. But such a judgment likely would be politically explosive, particularly given that a major-questions ruling still would have represented a significant (some might even say unprecedented) victory for those interested in limiting the power of federal agencies.

A somewhat subtler approach would likely be more appealing to Court conservatives such as Chief Justice Roberts, concerned about growth of the reputation of the Court as a partisan institution. Indeed, a brief from Democratic Senators Sheldon Whitehouse of Rhode Island, Richard Blumenthal of Connecticut,  Elizabeth Warren of Massachusetts, and Independent Senator Bernie Sanders of Vermont seems to appeal to this concern about the Court’s reputation. Those senators argue that a decision against the EPA could undermine the public’s faith in the Supreme Court and lead to its increasingly being seen as a purely political body. The briefs for the challengers address this concern in a different way: namely by invoking the major questions doctrine rather than the nondelegation doctrine, likely because they sense it is a more appealing argument given the current makeup of the Court with six Justices generally seen as “conservative” and three generally described as “liberal.”

That said, a major questions doctrine ruling could still have serious consequences. There are many instances in which agencies must rely on ambiguous allocations of statutory authority to resolve important policy questions. Conservatives would be able to use a major questions ruling to challenge agencies in such instances, particularly because a vague line between “major questions” and “minor questions” and between “ambiguous” and “unambiguous” might make it hard to understand the scope of the ruling. (New York University Law professor Richard Revesz’s brief focuses on the “illogical and unworkable new standards” that would come from applying the major questions doctrine to this case).

For climate action advocates, a Court ruling requiring explicit congressional language authorizing the EPA to regulate greenhouse gasses in the energy sector could be devastating. Given current gridlock in Congress, passing such a law would be extremely challenging, and in the meantime, the Biden administration would be prevented from acting through EPA to create new greenhouse gas rules, at least not using the same Clean Air Act provision that the Obama administration had used.

The EPA and its supporters put forward several counterarguments against the major questions doctrine. One interesting attempt to rebut the doctrine came from the Scholars of Congressional Accountability (SCA), who filed an amicus brief in the case. SCA argued that the major questions doctrine relies on the idea that it is easier to hold Congress accountable when it passes explicit laws on major questions than when it passes authority to agencies through more ambiguous laws. The SCA brief found that voters, as an empirical matter, don’t really make choices in this way, meaning that the supposed justification for the major questions doctrine is faulty. Given that most voters don’t closely follow the legislative process, SCA argued that it seems unrealistic to think limiting ambiguous delegation on major questions will lead to a boost in congressional accountability.

Several other briefs supporting the EPA, including one from 192 current members of Congress, argue that Congress intentionally gave EPA authority to regulate the power sector through the Clean Air Act, including in transformational ways. The National League of Cities and U.S. Conference of Mayors made a different but related argument that the Court’s own precedents, including a 2011 case concerning EPA authority to regulate greenhouse gas emissions called American Electric Power Company v. Connecticut, have already established EPA’s authority to regulate under the Clean Air Act. The two groups argued therefore that the major question at issue has already been settled and that the major questions doctrine does not apply.

Judicial ‘deference’ to Executive branch agencies

The challengers to EPA rulemaking on this issue raised another argument that could have serious implications for federal agency power. They suggested that courts should abandon a longstanding practice of giving “deference” to Executive branch decisions.

Under current precedents, courts generally defer to federal agencies’ interpretations of the laws that grant their powers where those laws are ambiguous. In this case, the EPA argues that the Court should defer to EPA’s interpretation of the Clean Air Act, an interpretation which gives the agency power to regulate greenhouse gasses.

This practice is known as Chevron deference, named for the 1984 environmental case where it was introduced. In recent years, some conservative justices have questioned Chevron deference and have signaled a willingness to overrule it. One of the groups that filed an amicus brief in support of the challengers, the Claremont Institute’s Center for Constitutional Jurisprudence, argues in its most recent brief that the Court should use this case to do away with the Chevron deference.

Doing away with the Chevron deference would be catastrophic for environmental regulation. Chevron is justified in part by federal agencies’ expertise in the areas where they regulate. Allowing agencies like the EPA to interpret complex laws like the Clean Air Act recognizes agency professional civil servants’ extensive knowledge of the regulatory schemes they implement and of the underlying science. If Chevron deference were overturned, courts’ interpretation of ambiguous statutes would routinely win out over the agencies’ interpretations, significantly limiting agency power, especially in light of the many conservative appointees to the federal judiciary in recent years.

Despite conservatives’ growing interest in overruling Chevron deference, there are indications the Court may be unlikely to overrule it in this case. Tellingly, only one amicus brief (out of fifteen filed in favor of the challengers) argued for overruling Chevron, and none of the challengers themselves made this argument. While Chevron debates are certainly something to watch for in future years, this relative silence on the issue suggests that the challengers do not think overturning Chevron is likely to happen in this case.

A few observations and takeaways

As with so many hot-button cases in recent years, the outcome of West Virginia v. EPA seems likely to come down to the moderate conservative Justices who represent the swing votes on the current Supreme Court. Both sides’ briefs seem to try to appeal to these Justices.

The federal government under President Biden emphasized judicial modesty through its standing arguments. The challengers emphasized the separation of powers and possibility of limiting the administrative state through their major questions doctrine arguments. But they largely stopped short of making more sweeping and controversial arguments involving the nondelegation doctrine and the possibility of overruling Chevron deference. Both sides couched their arguments in textualist terms, the preferred interpretive method of the Court’s six conservative Justices.

If “swing” Justices, such as Chief Justice John Roberts, decide not to involve the Court in a highly controversial case for the sake of preserving its institutional reputation, the case could be decided on grounds of the challengers’ lacking standing. If they instead choose to reach the merits, a major questions doctrine ruling may appeal to moderates more than nondelegation or Chevron deference rulings. The Court alternatively could decide the case on narrower grounds entirely, perhaps focusing only on the text of the Clean Air Act provision in question and limiting the implications of the case for other federal agencies.

The oral arguments before the Court, scheduled for February 28, may shed some light on individual Justices’ thinking. But only time will tell whether this case will change the landscape for greenhouse gas regulation and for federal agencies more broadly. A Court decision on the case likely will not be issued until close to the end of the current term in June.

Lexi Smith is a third-year student at Yale Law School. She studied environmental science and public policy as an undergraduate at Harvard, and she worked as an advisor to the Mayor of Boston on climate policy before enrolling in law school.