Ryan Valerio
The ambiguity surrounding the Supreme Court’s application of the major questions doctrine and the doubtful future of Chevron is continuing to sow uncertainty in regulations across all industries. The Biden Administration recently announced a finalized rule from the Environmental Protection Agency (EPA) that would be the country’s strictest-ever limits on greenhouse gas auto emissions. But conservative groups have vowed to challenge the new rule as an agency overreach, citing the major questions doctrine, which says that Congress must explicitly authorize federal agencies to address matters of political or economic significance.[1]
Under the major questions doctrine, courts will not presume that Congress intended to delegate to executive agencies issues of major economic or political significance absent a clear statement of intent. [2] While the doctrine has received its fair share of criticism,[3] the Supreme Court has never been entirely consistent in its agency powers jurisprudence. Federal agencies first gained prominence in the post-Civil War period of industrialization.[4] As the administrative state grew, the Supreme Court attempted to check its power by requiring Congress to make its intention to delegate power to agencies very explicit.[5] Then, in the 1930s, the Court tried to crack down even further by contriving the “nondelegation” doctrine, which required that any policymaking power given to agencies by Congress must have established criteria to guide that exercise of discretion.[6] This short-lived doctrine had mostly given way by the end of the New Deal era.[7]
For many decades after the New Deal era, the Supreme Court maintained a very deferential standard that allowed Congress to delegate policymaking authority so long as it provided agencies with an “intelligible standard.”[8] Then, in 1984, the Court made another sweeping decision that further expanded the power of agencies to exercise their rulemaking authority. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[9] the Court indicated that when a statute was ambiguous, it would defer to an agency’s reasonable interpretation.[10]
Since Chevron, the Court made relatively few drastic changes to the way it approaches agency power. But the cracks in Chevron’s armor began to show when the Court decided FDA v. Brown & Williamson Tobacco Corp.[11] in 2000. While the Court did not overrule Chevron, it made the unusual decision not to defer to the FDA’s interpretation that Congress had authorized it to ban cigarettes and smokeless tobacco because of the “economic and political significance.”[12] This was a preview of the major questions doctrine to come.
In 2022, the Supreme Court brought the major questions doctrine out of the shadows to strike down a major environmental regulation promulgated by the EPA. After Congress repeatedly failed to act, the EPA, under President Obama, promulgated a regulation that would require coal and natural gas plants to transition to cleaner energy sources.[13] In the Court’s decision to strike down the regulation in West Virginia v. EPA,[14] the Court made it clear that broadly worded, ambiguous statutes would not authorize agencies to make major policies without explicit and specific authorization from Congress.[15] Thus, the EPA’s attempts to regulate clean air under the Clean Air Act (“CAA”) were thwarted.[16]
In March of 2024, the EPA finalized a new rule that aims to accelerate the transition away from gas-powered vehicles and toward all-electric or hybrid vehicles.[17] The new regulation aims to ensure that more than half of new passenger cars and light trucks sold in the United States are electric or hybrid by 2032.[18] Like the regulations at issue in West Virginia v. EPA, the EPA has once again relied on the broad language of the CAA to promulgate the sweeping rule.[19] The relevant provision of the CAA generally allows the EPA to adopt auto emission regulations that preempt state laws, with the exception of California.[20] Partially in response to West Virginia, the EPA revised its originally proposed rule to give the auto industry more time to meet its stricter pollution standards.[21] Yet, the new rule is still “one of the most significant climate regulations in the nation’s history.”[22]
As of April 2024, twenty-five Republican-led states have sued the EPA to block the new tailpipe emissions rules.[23] They argue that the Agency has exceeded its statutory authority.[24] This comes after the Senate fell short of curbing the regulation through the political process.[25] The EPA’s new rule is part of the Biden Administration’s broader strategy of cutting greenhouse gas emissions in half by 2030.[26] But if the Court finds the rule to be as economically transformative as the regulation in West Virginia, the Biden Administration may find itself going back to the drawing board to figure out how to tackle the growing climate crisis. And it would be doing so with one less tool in its arsenal.
[1] See W. Va. v. EPA, 597 U.S. 697, 699 (2022).
[2] Id.
[3] See, e.g., Chad Squitieri, Who Determines Majorness?, 44 Harv. J.L. & Pub. Policy 463 (2021).
[4] Louis J. Capozzi III, The Past and Future of the Major Questions Doctrine, 84 Ohio St. L.J. 191, 200 (2023).
[5] Id. at 203.
[6] Id. at 209.
[7] Id. at 210.
[8] See Alex Forman, A Call to Restore Limitations on Unbridled Congressional Delegations: American Trucking Ass’ns v. EPA, 34 Ind. L. Rev. 1477, 1484 (2001).
[9] 467 U.S. 837 (1984).
[10] Id. at 843.
[11] 529 U.S. 120 (2000).
[12] Id. at 160.
[13] Capozzi III, supra note 3, at 192.
[14] 597 U.S. 697 (2022).
[15] See Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009, 1012–13 (2023).
[16] W. Va. v. EPA, 597 U.S. 697, 736 (2022).
[17] See Coral Davenport, Biden Administration Announces Rule Aimed at Expanding Electric Vehicles, N.Y. Times (Mar. 22, 2024), https://www.nytimes.com/2024/03/20/climate/biden-phase-out-gas-cars.html.
[18] Id.
[19] Id.
[20] 42 U.S.C.A. § 7543 (West).
[21] See Matthew Daly & Tom Krisher, EPA issues new auto rules aimed at cutting carbon emissions, boosting electric vehicles and hybrids, AP News (Mar. 20, 2024, 4:36 PM), https://apnews.com/article/epa-electric-vehicles-emissions-limits-climate-biden-e6d581324af51294048df24269b5d20a.
[22] Davenport, supra note 16.
[23] See Clark Mindock, Republican-led states sue to block US rules curbing tailpipe emissions in cars, light trucks, Reuters (Apr. 18, 2024, 1:09 PM), https://www.reuters.com/legal/republican-led-states-sue-block-us-rules-curbing-tailpipe-emissions-cars-light-2024-04-18/#:~:text=April%2018%20(Reuters)%20%2D%20Republican,agency%20exceeded%20its%20legal%20authority.
[24] Id.
[25] See Kellie Lunney, Biden Clean-Cars Rule Remains Intact After Failed Senate Vote, Bloomberg (Apr. 18, 2024, 3:48 PM), https://news.bloomberglaw.com/environment-and-energy/biden-clean-cars-rule-remains-intact-after-failed-senate-vote.
[26] See Lisa Friedman & Coral Davenport, Biden Will Pledge to Cut Greenhouse Gas Emissions Nearly in Half, N.Y. Times (Oct. 27, 2021), https://www.nytimes.com/2021/04/20/climate/biden-climate-change.html.
