The Supreme Court’s empowerment of the “major questions” doctrine could limit the federal government’s agility at a time when it is urgently needed.

Downstream of Lake Mead, the Colorado River flows into Lake Havasu, a reservoir on the California-Arizona border. Photo © J. Carl Ganter / Circle of Blue

By Laura Gersony, Circle of Blue — July 11, 2022

  • A Supreme Court decision last week strengthens one inroad for challenges to environment and water protections.
  • West Virginia v. EPA empowers the “major questions” doctrine: a legal argument that federal agencies may not rule on matters of “great economic and political significance” without direct approval from Congress.
  • The decision will likely make agencies tread cautiously when taking ambitious action, legal scholars told Circle of Blue, at a time when federal agility is urgently needed.

In a 6-3 decision last week, the Supreme Court restricted the Environmental Protection Agency’s ability to curb climate pollution from power plants. 

It was not the wrecking ball to climate policy that some predicted. The decision leaves intact the EPA’s authority to regulate greenhouse gas emissions, and even allows it to regulate power plants on a case-by-case basis.

The greater significance of the case, rather, may be the new inroad it creates for challenges to environment and water protections.

At the heart of the decision in West Virginia v. EPA lies the “major questions” doctrine: the legal argument that federal agencies may not rule on matters of “great economic and political significance” without direct approval from Congress. The majority opinion, authored by Chief Justice John Roberts, argued that the EPA cannot enforce the Clean Power Plan, an Obama-era draft rule, which would have required states to reduce emissions from electricity generation. 

To make expansive changes to the nation’s electric grid, Roberts wrote, the EPA “must point to ‘clear congressional authorization’ for the power it claims.”

“I think it’s safe to read this case as opening the door to future challenges to a whole host of regulations,” said Kirti Datla, of the environmental law nonprofit Earthjustice. “It’s a signal from the Supreme Court that if federal agencies are going to try things that look new, or look big, that they should be on notice. The Court’s going to look really closely at that, and they may intervene.”

There is a broad consensus among legal scholars that the court did not offer a clear standard of when the doctrine should be invoked. As a result, the decision will likely make federal agencies tread cautiously when taking ambitious action, four scholars told Circle of Blue.

 “It creates a new zone of uncertainty: it makes it more difficult to predict how the courts will come out on a variety of issues,” said Columbia Law School professor Michael Gerrard. “I do see this empowerment of the major questions doctrine is part of a broader pattern to inhibit federal regulatory action.”

Dena Adler, research scholar at New York University’s Institute for Policy Integrity, called the standard for the major questions doctrine “mushy.” 

“Opponents of regulation will continue to attempt to argue that other regulatory policies now qualify as major questions, and push for that exception to swallow the rule,” Adler said.

Hesitancy on the part of federal agencies could be damaging for U.S. water issues, many of which cut across state boundaries. James Eklund, an environmental lawyer and architect of the Colorado Water Plan, said that ambitious action by the Bureau of Reclamation has been central to averting the worst water shortages in the American West. States have a strategic interest in maintaining unsustainable water yields. It takes an ultimatum, like the one the Bureau issued last month, to bring states to the negotiating table. 

“States aren’t acting. This is a problem that requires at least federal participation, if not federal leadership,” Eklund said. “[West Virginia] really gets to the ability of the federal government to credibly tell the states…’We need you states to come up with a plan’.

He added: “If the major questions doctrine is applied to such a unilateral action, there is a pretty real threat that the federal government would be prohibited from acting.”

Advocates are not holding their breath for nimble action by Congress. America’s political landscape is more polarized than ever. Basic science on climate and environment is seen as political. As a result, agencies are hemmed in by dated statutes that were penned for the climate of last century. 

Eklund sees the West Virginia decision as a step in the wrong direction. “This is a time when we need greater agility from our government, not less,” Eklund said.

Of the five legal scholars who spoke with Circle of Blue, one takes a more optimistic view. Daniel Farber, law professor at UC Berkeley, sees the case as raising the standard for invoking the major questions doctrine. He thinks West Virginia clarifies one important guardrail for the standard: “stay in your lane.” 

“It’s not just about ‘how big of a deal is this?’ It’s also about whether an agency is taking on a kind of power that’s not part of its portfolio,” he said. Citing a court’s January decision to uphold vaccine mandates for health workers, he said, “the court is willing to uphold things on one side of the line.”

The sheer age of many water and environment regulations may make them more robust against a “major questions” challenge. And, of course, issues that are less politically controversial are less likely to prompt a lawsuit. 

Opponents of regulation are trying to push those limits. Challenges to water and environment protections are gaining steam from Trump-era judicial appointments. The Supreme Court recently agreed to revisit a landmark case that challenges whether wetlands should be protected under the Clean Water Act. Red states are suing to end the Biden administration’s moratorium on oil and gas leasing on federal lands, California’s stricter vehicle emissions standards, and the Security and Exchange Commission’s recent climate risk disclosure reporting rule.

The West Virginia decision marks the first time that the court used the phrase “major questions” in a majority opinion, a move seen to add claim to the legal argument. Some interpret West Virginia as a pretense for the Court — and its 6-3 conservative majority — to empower this standard.

“The court went out of its way to take this case. They were reviewing a rule that had been rescinded, and wasn’t going to come back,” Gerrard said. “I do see it as part of a broader attack on the administrative state.”