Our Constitution’s “framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’” The Constitution “placed its trust not in the hands of ‘a few, but [in] a number of hands,’” so that it “captures the wisdom of the masses.”
The irony of these words is that they are from Justice Gorsuch’s concurrence in West Virginia v. EPA (joined by Justice Alito) and perfectly describe how six unelected and unaccountable Justices believe they can now routinely strike down well-established and widely accepted governing principles.
The Supreme Court’s decision in West Virginia v. EPA ignored the Clean Air Act’s plain text and bedrock administrative law principles to overrule the Environmental Protection Agency’s (EPA) authority to choose the best system of regulating greenhouse gas emissions from coal- and gas-fired power plants. It did so by employing a little-used concept that the Court now dignifies with the name “the major questions doctrine,” which it threatens to apply in cases of major political and economic significance. (Or wherever the majority of justices say such issues are present.)
The Court did not question EPA’s mandate to regulate power plant emissions. Rather, it held that the Clean Air Act did not grant EPA authority to opt for the particular method it had chosen in the Clean Power Plan (CPP) (which would have required power plants to shift generation from coal to renewables and/or natural gas). It used the major questions doctrine to completely circumvent the Act’s text and its own long-standing precedent, saying that the consequences of the CPP would be so significant that Congress could not have intended to delegate such authority to EPA.
Justice Kagan illuminated the gravity of West Virginia v. EPA in her dissenting opinion, recognizing that “the Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy…I cannot think of many things more frightening.” Without any clear explanation or articulation of a standard for what qualifies as a “major question,” the Supreme Court can and likely will weaponize this novel doctrine in other cases to serve up its brand of a constitutionally prescribed balance of power—one where it becomes dominant.
We are already seeing this amorphous new major questions doctrine weaponized against any executive branch body that regulates in a manner repugnant to the far-right agenda. The Solicitor General of Texas recently penned a letter to the Fifth Circuit Court of Appeals asking the court to consider the major questions doctrine as articulated in West Virginia in deciding upon the legality of the Deferred Action for Childhood Arrivals (DACA). And it will be raised in situations even farther afield, such as industry challenges to recent draft policy guidance issued by the Federal Energy Regulatory Commission (FERC) regarding consideration of greenhouse gas emissions in the approval of interstate natural gas pipelines.
In West Virginia v. EPA, the Court appoints itself as the ultimate arbiter of any governmental decisions ostensibly qualifying as “major.” Given the lack of an intelligible standard, it has the potential to derail critical decisions made by federal agencies. The decision may have far-reaching impacts not only on EPA’s ability to choose the best options for regulating greenhouse gases, but on any federal agency regulating any important issue—which, frankly, most are. It also indicates the current Court’s willingness to depart from precedent in deciding major cases to serve its political aims, which may manifest itself in the future in increasingly alarming ways.