West Virginia v. EPA: What This Means for Federal Agency Rulemaking Going Forward

Alerts / August 12, 2022

The U.S. Supreme Court’s decision in West Virginia v. EPA has received much press as a decision that limits regulations designed to address climate change. But in reality, it was not so much an environmental law case as an administrative law case, and a landmark one at that, because this was the first case where the Court put its formal imprimatur on “the major questions doctrine.”

The reasoning underpinning the major questions doctrine has animated multiple Supreme Court decisions where the Court had either declined to defer to agencies or had struck down agency rules, finding that they had not been authorized by Congress. The most notable lower court opinion to formulate a systematic major questions doctrine was then-D.C. Circuit judge Brett Kavanaugh’s, who summed up the doctrine as follows: “If an agency wants to exercise expansive regulatory authority over some major social or economic activity – regulating cigarettes, banning physician-assisted suicide, eliminating telecommunications rate-filing requirements, or regulating greenhouse gas emitters, for example – an ambiguous grant of statutory authority is not enough. Congress must clearly authorize an agency to take such a major regulatory action.”[1] Kavanaugh also drew from a law review article published by Justice Stephen Breyer, which had noted that as a practical matter, when determining “the extent to which Congress intended that courts should defer to the agency’s view of the proper interpretation,” courts should take into account the legislative reality that Congress may grant the executive branch the authority to resolve various “interstitial matters,” but Congress itself is “more likely to have focused upon, and answered, major questions.”[2] Five years later, Kavanaugh’s conception, first announced in dissent on the D.C. Circuit, now has been accepted by the Supreme Court.

In briefing before the Supreme Court, parties pressed various permutations of the major questions doctrine. The state coalition led by West Virginia and industry participant North American Coal Co. framed the major questions doctrine as an interpretive cannon – basically a thumb on the scale when deciding how to interpret statutory text. Westmoreland Mining, represented by BakerHostetler, however, urged the Court to recognize the major questions doctrine as a substantive limit on agency authority. The Court adopted Westmoreland’s approach, holding that “in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims” (slip op. at 19).

The context of the case was the Clean Power Plan (CPP) passed by EPA during the Obama administration, which reduced carbon dioxide emissions by forcing existing coal-fired power plants to reduce or eliminate operations in favor of renewable sources, a process called generation shifting. This was unprecedented because prior regulations of existing stationary sources merely mandated better emission control technology and practices, not shutdown of one type of industry in favor of another. Following the Supreme Court’s unprecedented stay of this unprecedented rulemaking, the Trump-era EPA repealed the CPP and replaced it with the Affordable Clean Energy rule (ACE), which returned to the traditional means of requiring emissions reductions through better technological processes at existing power plants. A coalition of environmental groups, blue states and some industry groups sued to challenge the repeal of the CPP, and the D.C. Circuit struck down both the repeal of the CPP and its replacement with ACE, effectively resurrecting the CPP. In West Virginia, the Supreme Court reversed the D.C. Circuit, finally putting the nail in the coffin for the CPP as an administrative action of major “economic and political significance” taken without “clear congressional authorization.”

Beyond the Supreme Court’s embrace of the major questions doctrine, the other notable aspect of the decision is something that it did not mention: Chevron. The Supreme Court’s 1984 ruling in Chevron v. Natural Resources Defense Council adopted the presumption that Congress intends to delegate the power to resolve statutory ambiguities to agencies and thus held that courts must defer to “reasonable” executive branch interpretations of “ambiguous” statutes. For nearly 40 years, Chevron has enabled federal agencies to enact policies based on their own preferred interpretations rather than the best reading of existing law. But the major questions doctrine, as stated by the Court in West Virginia, turns the Chevron standard on its head in the most important cases, making textual ambiguity preclude rather than enable an agency’s preferred regulations.

As has been noted elsewhere, this may be a step toward curtailing or perhaps eventually abandoning Chevron.[3] But until such time as the Supreme Court confronts the role of Chevron head-on, the relevant question for judges and litigants in lower courts is “What puts a case in the ‘major questions’ bucket versus the Chevron bucket?” West Virginia provides the following guideposts:

  • Does the case involve a “significant portion of the U.S. economy” or order “wholesale restructuring of any industrial sector” (e.g., the regulations here were projected to have billions of dollars of impact and would have restructured the energy sector by forcing a shift away from coal and natural gas; other major questions cases have involved regulating tobacco products, eliminating rate regulation in the telecommunications industry, subjecting private homes to Clean Air Act restrictions, and suspending local housing laws and regulations)?
  • Does the case involve “a matter of great political significance” by attempting to end an “earnest and profound debate across the country” (e.g., past major questions cases have involved a physician-assisted suicide ban, COVID-19 vaccine mandates and greenhouse gas regulations)?
  • Does the case involve an agency claiming power to do something it has never done before, especially if the claim is based on a statutory provision never interpreted to support that authority before (e.g., here the EPA “claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler”)?
  • Does the agency interpretation and regulation enable the agency to “adopt a regulatory program that Congress had conspicuously declined to enact itself” (e.g., Congress had considered and rejected several laws that would have had similar effects to the regulation at issue)?
  • Is it plausible that Congress intended for the agency to have authority to publish the regulation at issue, accounting for “separation of powers principles and a practical understanding of legislative intent”?

This is likely not the last time the Biden administration will be forced to defend its policies against suits based on the major questions doctrine. For example, the SEC’s recently proposed climate disclosure rules fit many of West Virginia’s guideposts and will be ripe for challenge. And while this doctrine is not limited to climate change, the Biden administration seems ready to charge the breach again in that context, given the president’s recent statement that “if the Senate will not move to tackle the climate crisis and strengthen our domestic clean energy industry, I will take strong executive action to meet this moment.”[4] The administration may regret that statement, as a substantially similar remark by Obama was seized on by litigants in West Virginia (and quoted by Justice Neil Gorsuch in concurrence) to persuade the Court that subsequent administrative actions were a usurpation of Congress’ role rather than an exercise of discretion granted by Congress.

West Virginia v. EPA may mark the beginning of the end for agency regulations designed to short-circuit congressional deadlock, but for the time being, it will be up to litigants in the lower courts to hash out the boundaries of the major questions doctrine and the extent to which it practically cabins agency authority.

[1] United States Telecom Ass’n v. FCC, 855 F.3d 381, 422 (D.C. Cir. 2017) (en banc) (Kavanaugh, dissenting from the denial of rehearing en banc).

[2] Id. at 422 (quoting Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986)).

[3] DeLaquil & Rivkin, Wall Street Journal, “No More Deference to the Administrative State” (July 10, 2022).

[4] White House Press Release, Statement by President Joe Biden (July 15, 2022), available at

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