Thoughts on West Virginia v. EPA

At long last (for those of us who watch for these decisions), the Supreme Court has issued its decision in West Virginia v. Environmental Protection Agency, a case challenging the EPA’s Clean Power Plan regulations under the Clean Air Act. Scholars and others anticipated the decision as a potential vehicle for reinvigorating the nondelegation doctrine. That doctrine interprets Article I, Section 1 of the U.S. Constitution as preventing Congress from delegating legislative power to federal administrative agencies (or anyone else), but it has been mostly defunct for decades except as a matter of academic theory, as Congress routinely has given agencies tremendous policymaking discretion. But a majority of the justices had signaled interest in reevaluating and revitalizing the nondelegation doctrine.

In the end, however, the Court didn’t do that. Instead, the Court applied the major questions doctrine as a canon of statutory interpretation to hold that the EPA lacked the necessary authority under the Clean Air Act as written to adopt the regulations in question. I expect that courts, scholars, and practicing lawyers (myself included) will be unpacking WV v. EPA for days, weeks, months, and even years to come, so my thoughts regarding the decision are necessarily preliminary. Nevertheless, having written about both the nondelegation doctrine and the major questions doctrine on various occasions (including here and here), I thought I would post a few thoughts.

First, I think it’s important to appreciate what the Court did not do in this case. Specifically, again, the Court did not approach the case as a matter of constitutional interpretation. The Court did not replace the intelligible principle standard that it has used in applying (or not applying) the nondelegation doctrine for the last 100 years or otherwise try to reinvigorate the nondelegation doctrine as such. Academic and judicial debate over the nondelegation doctrine is not a new phenomenon, and it hasn’t always been as partisan as it is now. But replacing the intelligible principle standard would have been a really, really big deal as an matter of constitutional interpretation. Not only did the Court not go there, but its enthusiasm for doing so seems to have waned.

The most vocal proponent for replacing the intelligible principle standard in pursuit of a more robust nondelegation doctrine has been Justice Gorsuch, per his dissenting opinion in Gundy v. United States and his concurring opinion in NFIB v. OSHA. By comparison, although his concurring opinion in WV v. EPA claims separation of powers principles as the conceptual basis for the major questions doctrine as a substantive canon, he seems somewhat resigned to living with the major questions doctrine as a subconstitutional limitation on congressional delegations in lieu of reinvigorating the nondelegation doctrine itself. Most of Justice Gorsuch’s concurring opinion in WV v. EPA is focused on highlighting circumstances in which he thinks the Court might apply major questions doctrine as a canon of statutory interpretation, some of which were emphasized by the majority, but others of which were not so much. Justice Gorsuch clearly tried to push the major questions doctrine as much as he could as a substantial limit on congressional delegations of policymaking discretion to agencies, but only Justice Alito joined his concurrence.

In an article published last year, I argued that even replacing the intelligible principle standard wouldn’t be that big of a deal practically given (1) the sheer number and varying types of delegations contained in the U.S. Code and (2) the case-by-case, provision-by-provision, statute-by-statute alternatives to the intelligible principle standard that Justice Gorsuch and others on the Court seemed to be pursuing (as opposed to more sweeping and categorical approaches that are available). Still, I raised concerns about the potential negative implications of replacing the intelligible principle standard even with an incrementalist alternative, and I suggested the advisability of sticking with subconstitutional means of checking agency authority to the extent that was the goal. Turning to the major questions doctrine as a canon of statutory interpretation is so much more restrained than what might have been, even if the Court applies the canon more aggressively than in the past.

Second, in applying the major questions doctrine as it did, the Court said that Congress didn’t give the EPA the necessary authority to adopt the regulations at issue, not that Congress couldn’t give the EPA that authority. Congress just needs to speak more clearly if it wants the EPA to be able to adopt the Clean Power Plan regulations. As I see it, this is an important distinction. To be sure, the Court in WV v. EPA is not entirely clear about just how much more detail it expects of Congress, and getting our sharply divided and gridlocked Congress to amend the Clean Air Act or any other statute is a heavy lift. For those who want more regulation of carbon dioxide emissions immediately, this outcome is dissatisfying, to say the least. But thinking more systemically and in the long term, getting Congress to amend a statute remains an easier proposition than navigating the constitutional amendment process. And amending a statute to more clearly delegate to an agency the requisite rulemaking power to address a particular contemporary problem is much easier than amending the same statute with the specificity that would have been necessary if the Court required Congress to resolve all major policy questions itself (as would have been the case if the Court had replaced the intelligible principle standard and reinvigorated the nondelegation doctrine as Justice Gorsuch wanted it to do in Gundy).

Third, in my view, the major questions doctrine as described by the Court in WV v. EPA is not so limitless as some detractors suggest. Many passages in Chief Justice Roberts’s opinion for the majority were dedicated to offering guideposts and guardrails for the applicability of the major questions doctrine as a canon of statutory interpretation. If I had to pull a standard out the Court’s opinion today, I would say that whether the major questions doctrine applies depends upon (1) “the ‘history and the breadth of the authority that [the agency] has asserted,'” (2) “the ‘economic and political significance’ of that assertion,” and (3) the extent to which the agency is relying on “‘modest words,’ ‘vague terms,’ or ‘subtle device[s]'” rather than more direct delegations from Congress. To put it more colloquially, the major questions doctrine applies to curtail agency discretion when an agency stretches the boundaries of statutory interpretation to claim new authority to address big problems that weren’t obviously under the agency’s jurisdiction previously.

To be sure, this is a mushy standard rather than a bright line rule, which makes its application more subjective and uncertain than admirers of the administrative state would prefer. Mushy standards have their drawbacks, including but not limited to a lack of certainty ex ante and a potential for inconsistency of application. Bright line rules have their problems, too. (Surveying the rules versus standards literature is beyond the capacity of a mere blog post. For just a few entries, see here and here and here.) But the formulation of the major questions doctrine that I draw from the Court’s opinion in WV v. EPA is not limitless.

If we are honest, I expect we can all think of circumstances in which an agency, facing political pressure in the face of congressional inaction, has pushed the boundaries of statutory interpretation to claim authority that it previously denied in order to address a policy problem through regulation. Although I continue to defend the application of Chevron deference in the context of agency rulemaking, I will concede that the availability of Chevron deference has emboldened agency officials to push the interpretive envelope on some occasions. Meanwhile, congressional gridlock means more pressure on the executive branch to adopt regulations where the statutory authority to do so is shakier.

Finally, the court’s decision in WV v. EPA, and its embrace of a more robust major questions doctrine, are not the massive blows to the administrative state that some commenters claim. The reality on the ground is that most delegations are clearer and most regulations are narrower and more “interstitial” (to use a favorite word of Justice Breyer’s) than the Clean Power Plan regulations at issue here. Most of those regulations never see the inside of a courtroom, and more aggressive application of the major questions doctrine seems unlikely to change that.

Also, consistent with the article I mentioned above, Daniel Waters suggested on Twitter that the Court’s approach to the major questions doctrine is a limited range tool given that agencies adopt thousands of rules and the Supreme Court hears maybe 65 cases each year. Even adding in federal circuit court activity is unlikely to alter this conclusion. Overall, the circuits remain ideologically mixed. Most three-judge panels, and even most circuits, will not be itching to apply the major questions doctrine as aggressively as possible. And the circuit courts historically have been more deferential to agencies than the Supreme Court in any event.

None of this is to say that yesterday’s decision in WV v. EPA is no big deal. It’s an important decision with serious implications for agency decisionmaking and judicial review thereof, especially with respect to controversial rulemaking projects that rely on strained (and perhaps some not-so-strained) interpretations of old statutes to tackle big contemporary problems. The Clean Power Plan regulations likely will not be the only agency regulations to fall as a result. Reasonable people can disagree over whether this doctrinal development is a good thing or a bad thing. Nevertheless, doctrinally at least, the major questions doctrine has been and is a lot more incremental in both its evolution and its application than what some people feared the Court might do. Suggestions otherwise strike me as premature.

Cross-posted at

kristin hickman

Professor Kristin Hickman is a legal scholar working in the fields of tax administration, administrative law, and statutory interpretation. In addition to the Of Interest blog, Professor Hickman authors the Administrative Law Treatise (with co-author Richard J. Pierce, Jr.) and has published scholarly articles in Columbia Law Review, Virginia Law Review, Cornell Law Review, Duke Law Journal, Georgetown Law Journal, Vanderbilt Law Review, and many other prominent U.S. and international publications. She holds the titles of Distinguished McKnight University Professor and Harlan Albert Rogers Professor of Law at the University of Minnesota Law School.