U.S. Supreme Court Endorses Major Questions Doctrine as Interpretive Canon in EPA Ruling

July 6, 2022 | Insights

By Michael Nasi, Jennifer Caughey, Taylor Holcomb, & Cody Vaughn

Last week, the United States Supreme Court held in West Virginia v. Environmental Protection Agency (No. 20-1530) that EPA may not rely upon Section 111(d) of the Clean Air Act to “force a nationwide transition away from the use of coal.” Citing the “major questions doctrine,” the Court explained that a Congressional delegation of “unprecedented power” requires a clear statement that is simply not present in the Clean Air Act. This clear-statement requirement is an adoption of the major questions doctrine as an interpretive canon—a thumb on the scale when courts weigh the implications of statutory text. The opinion restrains EPA’s power under the Clean Air Act, but the Court’s endorsement of the major questions doctrine has broad implications beyond the Clean Power Plan, the Clean Air Act, and the EPA.

The decision arose from the EPA seeking to compel reductions in carbon dioxide emissions by shifting power generation away from coal to other generation sources. In doing so, the Court found that the EPA seized power beyond what Congress authorized in the Clean Air Act, citing “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” The Court found that, left unchecked, the EPA’s authority “could go further, perhaps forcing coal plants to ‘shift’ away virtually all of their generation,” causing coal plants to “cease making power altogether.” Even on the more tempered view, the EPA would be left to decide the practical feasibility of switching to non-coal generation sources before a grid collapse and “how high energy prices can go” before they are “unreasonably exorbitant.”

As the Court made clear, however, for decisions “of such magnitude and consequence,” federal agencies must have “more than a merely plausible textual basis for the agency action” and “must point to clear congressional authorization for the power it claims.” This reasoning is a strong endorsement of the major questions doctrine as an interpretive canon: Congress may delegate “decision[s] of [great] magnitude and consequence” to administrative agencies, but it must do so clearly.

This clear statement rule will have broad ramifications related to agency rulemaking authority.

Justice Gorsuch concurred in both the judgment and the opinion, joined by Justice Alito, expanding on the major questions doctrine. The doctrine, he writes, is essential to the separation of powers and the Court’s role to review acts of Congress, including nondelegation. And he explains that statutory text, its historical context, past agency interpretations of that text, and past agency action may all inform whether there has been a clear delegation. Justice Kagan dissented with Justices Breyer and Sotomayor joining. She charges the Court’s major-questions doctrine as a “magically appear[ing] get-out-of-text-free card.” She would leave “for Congress (within extremely broad limits) to get to call the shots” on its own delegations.

Jackson Walker partners Michael J. Nasi, Jennifer Caughey, and Danica L. Milios filed amicus briefs in support of the petitioners.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For assistance related to the Clean Air Act or the Supreme Court ruling, please contact Michael Nasi, Jennifer Caughey, Taylor Holcomb, or any member of the Climate Change & Carbon Management practice.

About the Authors

Michael Nasi

Michael J. Nasi serves as founder and Chair of Jackson Walker’s Climate Change & Carbon Management group and practices in the Jackson Walker’s Environmental and Energy practice areas. Mike is counsel for parties in ongoing regulatory proceedings relating to carbon dioxide, interstate air quality, regional haze, and coal combustion residuals, including appeals pending before the U.S. Courts of Appeals for the Fifth, Eighth, Tenth, and D.C. Circuits, as well as the U.S. Supreme Court. He also practices before the EPA, TCEQ, the Texas Railroad Commission, and the Texas Legislature.

Jennifer Caughey

Jennifer Caughey is a former Justice on Texas’s First Court of Appeals and the current chair of Jackson Walker’s appellate section. Since returning to private practice, she has successfully represented clients in diverse state court matters across Texas, including at the Texas Supreme Court, in various Texas Courts of Appeals, and in trial courts (at jury and bench trials and otherwise). She also has a vibrant federal practice, and has represented clients in the U.S. Supreme Court, the U.S. Court of Appeals for the First, Fifth, Sixth, Ninth, and Tenth Circuits, and in federal district courts.

Taylor Holcomb

Taylor Holcomb is an energy, environmental, and regulatory attorney. His practice focuses on the development and permitting of domestic energy projects, ensuring compliance with state and federal laws, and defending against claims brought by administrative agencies and environmental activist groups. He has practiced before a variety of federal, state, and local agencies, including the TCEQ, the Texas Railroad Commission, the Public Utility Commission of Texas, the New Mexico Environment Department, and the Environmental Protection Agency.

Cody Lee Vaughn is an associate in the Trial & Appellate Litigation practice of Jackson Walker’s Austin office. Prior to Jackson Walker, Cody served as a judicial law clerk at the Supreme Court of Texas. He also practiced for two years prior, including a pro bono argument in the United States Court of Appeals for the Seventh Circuit.

To explore the Firm’s representation of energy clients in developing and deploying incentives and projects for the capture, transportation, utilization, and storage of carbon dioxide, visit the Energy, Environment & Natural Resources, and Climate Change & Carbon Management practice pages.