West Virginia V. EPA: What This Means For Federal Agency Rulemaking Going Forward

• Published date: 15 August 2022
• Subject Matter: Environment, Government, Public Sector, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Constitutional & Administrative Law, Climate Change
• Law Firm: BakerHostetler
• Author: Mr Martin Booher, Mark DeLaquil, Andrew M. Grossman and Joshua T. Wilson

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...