The Future of American Administrative Law

By: Daniel Wolf

Edited By: Anna Westfall and Kiran Sheth

On February 28, 2022, the Supreme Court will hear oral arguments in the case of West Virginia v. Environmental Protection Agency. The case involves the scope of the powers delegated to the Environmental Protection Agency (EPA) under the Clean Air Act of 1963. Besides having an immense impact on Congress’ ability to pass legislation, the Court’s ruling in West Virginia could fundamentally change the modern landscape of administrative law that has existed since Franklin Delano Roosevelt’s New Deal in the 1930s. 

West Virginia is a peculiar case in that it revolves around an Obama-era regulation that is no longer in effect. In 2015, the Obama administration’s EPA under the Obama administration issued the Clean Power Plan, which created guidelines for reducing greenhouse gas emissions from power plants.[1] The foundation for the Clean Power Plan was the Clean Air Act, a 1963 law that instructed the EPA to determine “the best system of emission reduction” for various pollutants.[2] Soon after Obama announced the impending Clean Power Plan, the EPA determined that the “best system” for reducing carbon dioxide emissions would include radically changing the methods by which power plants generated power.[3] Since some coal plants would have had to shut down under the EPA’s proposed guidelines, more than 20 Republican-led states and coal companies sued the EPA. The plaintiffs argued that the Clean Power Plan could not go into effect until courts had heard all legal challenges concerning the law.[4] In February 2016, the Supreme Court agreed, issuing a stay on the implementation of the law. Notably, this was the first time the Court issued a stay on federal regulations before a lower federal appeals court heard the case.[5] 

Donald Trump’s administration quickly scrapped the Clean Power Plan before it could ever go into effect, replacing it with the Affordable Clean Energy (ACE) rule. The Trump Administration justified ACE by claiming that the EPA should never have had the authority to issue the Clean Power Plan.[6] Climate change activists were displeased with ACE, so Democrat-led states and two other groups of petitioners challenged the law. On January 19, 2020, the U.S. Court of Appeals for the D.C. Circuit overturned ACE, stating that the law was based “on a mistaken reading of the Clean Air Act.”[7] As far as the Court of Appeals was concerned, the Clean Air Act did grant the EPA broad discretionary authority in determining the “best system” for reducing emissions.[8]

The Biden Administration opted not to renew ACE and announced their intention to institute their own climate change regulations. Before the administration could write new rules, West Virginia and a host of other states and coal companies asked the Supreme Court to hear an appeal of the D.C. Circuit’s ruling.[9] At this point, neither ACE nor the Clean Power Plan was in effect, so most Supreme Court observers expected the Court to reject the petitions for appeal.[10] However, the Court unexpectedly granted the appeal in October 2020.

The central question in West Virginia is whether or not the EPA has broad authority under Section 111(d) of the Clean Air Act to implement regulations they deem to be part of the “best system” for reducing emissions.[11] Nevertheless, briefs filed by the petitioners thus far indicate their intention to seek a ruling farther-reaching than one that would cover only the scope of the EPA’s powers under the Clean Air Act. Many briefs invoke the “major questions” doctrine, an administrative law interpretation popular among conservative legal scholars.[12] The major-questions doctrine argues that an executive agency such as the EPA may issue a regulation that would have “significant political or economic ramifications” only if Congress explicitly allows them to do so.[13] Some of the briefs make even larger claims, utilizing the so-called “non-delegation” doctrine to argue that Congress should never be able to delegate its rule-making powers to other agencies. 

Both the major-questions doctrine and the non-delegation doctrine run afoul of the Chevron doctrine, which has been the prevailing approach to administrative law since the 1984 case Chevron U.S.A., Inc, v. Natural Resources Defense Council. The Chevron doctrine asserts that courts should “defer to an executive agency’s interpretation” of a given statute so long as that interpretation is “reasonable.”[14] This doctrine has come to form the foundation of contemporary administrative law. Almost all government regulations today rely on the doctrine, from rules regarding worker safety to air quality.[15]

The Supreme Court’s decision to hear West Virginia despite the “absence of a rule to review” suggests that some of the Court’s conservative justices are interested in issuing a wide-ranging ruling concerning the state of American administrative law.[16] Moreover, Justices Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas have recently indicated their desire to revive the major-questions doctrine, which has been effectively out of use in jurisprudence since the New Deal.[17] The effects would be unimaginable if the Court decides to issue a ruling that replaces the current Chevron doctrine with the major-questions or non-delegation doctrine. In 2019, Justice Elena Kagan noted that replacing the Chevron doctrine could render most contemporary governance unconstitutional because Congress is “dependent…on the need to give discretion to executive officials to implement its program.”[18]

People outside the legal community should begin to pay closer attention to West Virginia. If the Court were to replace the Chevron doctrine with the major-questions or non-delegation doctrine, there would be endless litigation over the countless government regulations that currently rely on the Chevron doctrine. Additionally, there are practical concerns regarding the government’s ability to pass new legislation in the future. It is already difficult enough for our legislature to pass laws today. If Congress had to detail all of their intentions when writing new regulations explicitly, it is exceedingly likely that both parties would agree even less than they already do. 

NOTES:

1. “West Virginia V. Environmental Protection Agency.” 2022. Ballotpedia. Accessed January 30. https://ballotpedia.org/West_Virginia_v._Environmental_Protection_Agency. 

2. Elizabeth Kolbert. 2022. “The Supreme Court Case That Could Upend Efforts to Protect the Environment.” The New Yorker. January 10. https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment.

3. “The Supreme Court Case.” The New Yorker.

4. Courtney Scobie. 2022. “Supreme Court Stays EPA's Clean Power Plan.” Americanbar.org. Accessed January 30. https://www.americanbar.org/groups/litigation/committees/environmental-energy/practice/2016/021716-energy-supreme-court-stays-epas-clean-power-plan/.

5. “Supreme Court stays EPA.” Americanbar.org

6. “The Supreme Court Case.” The New Yorker.

7. “DC Circuit Vacates Affordable Clean Energy Rule, Revives Clean Power Plan.” 2022. JD Supra. Accessed January 30. https://www.jdsupra.com/legalnews/dc-circuit-vacates-affordable-clean-5784638/.

8. “The Supreme Court Case.” The New Yorker.

9. “The Supreme Court Case.” The New Yorker.

10. “The Supreme Court Case.” The New Yorker.

11. “West Virginia V. Environmental Protection Agency.” Ballotpedia.

12. Karen C. Sokol. 2022. “The Supreme Court's Plan to Block Climate Action We Haven't Even Taken Yet.” Slate Magazine. Slate. January 25. https://slate.com/news-and-politics/2022/01/supreme-court-wv-epa-climate-doom.html. 

13. “The Supreme Court’s Plan.” Slate.

14. “The Supreme Court Case.” The New Yorker.

15. “The Supreme Court Case.” The New Yorker.

16. “The Supreme Court’s Plan.” Slate.

17. “The Supreme Court’s Plan.” Slate.

18. Gundy v. United States, 588 U.S. 17 (2019)

BIBLIOGRAPHY:

“DC Circuit Vacates Affordable Clean Energy Rule, Revives Clean Power Plan.” 2022. JD Supra. Accessed January 30. https://www.jdsupra.com/legalnews/dc-circuit-vacates-affordable-clean-5784638/.

Gundy v. United States, 588 U.S. (2019)

Kolbert, Elizabeth. 2022. “The Supreme Court Case That Could Upend Efforts to Protect the Environment.” The New Yorker. January 10. https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment.

Scobie, Courtney. 2022. “Supreme Court Stays EPA's Clean Power Plan.” Americanbar.org. Accessed January 30. https://www.americanbar.org/groups/litigation/committees/environmental-energy/practice/2016/021716-energy-supreme-court-stays-epas-clean-power-plan/.

Sokol, Karen C. 2022. “The Supreme Court's Plan to Block Climate Action We Haven't Even Taken Yet.” Slate Magazine. Slate. January 25. https://slate.com/news-and-politics/2022/01/supreme-court-wv-epa-climate-doom.html.

“West Virginia V. Environmental Protection Agency.” 2022. Ballotpedia. Accessed January 30. https://ballotpedia.org/West_Virginia_v._Environmental_Protection_Agency.