In the year since the Supreme Court embraced the “major questions doctrine” (MQD), industry and Republican state attorneys general have argued that federal regulations ranging from stricter vehicle emissions standards to climate change disclosures must be struck down under its banner. Results have been mixed in the lower courts, which, given the MQD’s lack of definition and clarity, is unsurprising. But there is little question that regulatory efforts to address the climate crisis are at risk. With many federal judges sympathetic to the MQD’s anti-regulatory bent, and the Supreme Court majority that created this doctrine predicted to last for years, a legislative response from Congress may be a practical solution – if the politics can handle it.
The Scramble to Identify Major Questions in Administrative Law
In its June 2022 decision in West Virginia v. Env’t Prot. Agency, the Supreme Court formally announced its embrace of the MQD, holding that the Environmental Protection Agency (EPA) did not have authority to issue a greenhouse gas emissions rule that shifted electricity generation away from coal. The West Virginia majority opinion suggests a two-prong framework for the major questions doctrine. To determine whether the MQD applies, a court must ask if it is faced with an “extraordinary case…of vast economic and political significance,” if the agency action at issue is “unheralded,” and whether it represents a “transformative” change in the agency’s authority – or perhaps some combination of those attributes. (A concurring opinion sets forth other “non-exhaustive” factors that may be relevant to invoking the doctrine.) If the doctrine is found to apply, West Virginia then directs the reviewing court to examine the agency’s assertion of authority with “skepticism,” although the agency can overcome that skepticism by identifying “clear congressional authorization” for its action.
Following the West Virginia decision, analysis of the MQD has proliferated as legal scholars grapple with the doctrine’s lack of definition. The absence of clear guidance from the Supreme Court distinguishing “major” questions from “non-major” ones has complicated efforts to establish the boundaries of the doctrine, and litigators have moved quickly to exploit this ambiguity in the doctrine’s rhetoric.
Parties eager to challenge regulations have sought to characterize a wide range of agency decisions as “major,” and therefore invalid under West Virginia. Agency rulemaking across the federal government – from fiduciary duties and antitrust enforcement, to telecommunications and the authority of the FDA, to immigration policy and nuclear waste storage, among many other issues – has been challenged as unlawful under the principles of the MQD. Seemingly any subject that can be deemed important enough to regulate cannot actually be regulated without precise authorizing language from Congress (at least according to the challengers).
Despite this opportunism, and the MQD’s inconsistent application across lower courts, the Supreme Court declined to resolve the doctrine’s ambiguity in another high-profile end-of-term decision a year after West Virginia. On June 30, 2023, the Supreme Court applied the major questions doctrine in Biden v. Nebraska, invalidating the Biden Administration’s student loan forgiveness program. The Court found the program unlawful because the cancelation of $430 billion in debt was “a decision of such magnitude and consequence” and a matter of such “earnest and profound debate across the country” that it must “rest with Congress itself, or an agency acting pursuant to a clear delegation” from Congress. Notably, the Court acknowledged that the HEROES Act does authorize the Secretary of Education to “waive” or “modify” student debt obligations during a national emergency. However, the conservative majority of the Court deemed this plain language insufficient under the MQD, finding that Congress could not have meant to authorize debt cancelation on this scale without explicit further direction.
To reach this arguably counter-intuitive conclusion, the Court implied what its majority members consider a “common sense” approach. “The shared intuition behind these cases,” Justice Barrett wrote in her Biden v. Nebraska concurrence, “is that a reasonable speaker would not understand Congress to confer an unusual form of authority [to the executive] without saying more.” In both the majority opinion, authored by Chief Justice Roberts, and in Justice Barrett’s concurrence, discussions of reasonableness are prominent. However, as commentators have been quick to point out, “reasonableness” is open to interpretation, empowering courts to invalidate any federal action with meaningful social impact by relying on individual intuitions about language and meaning. As a consequence, conservative advocates eager to dismantle federal regulations have continued to make the MQD a centerpiece of their strategy, and lawyers of all political stripes with clients who seek to challenge regulations have seized on the MQD as well.
The Major Questions Doctrine in Climate and Environmental Cases
The impact of this strategy may be felt acutely with respect to climate change, where the urgency and scale of the climate crisis are confounded by the challenge of Congressional gridlock. As Justice Kagan points out in her Biden v. Nebraska dissent, the functionality of the federal government depends on Congressional delegation to agencies, because “agencies have expertise Congress lacks” and because “agencies are better able to keep up and respond” to changing circumstances. The challenge of meeting changing conditions in administrative law is known as the pacing problem: scientific and technological developments will nearly always outstrip the pace of government oversight. To accommodate these legislative lags, one typical approach is to extend existing regulations, rather than create new legislation. But the application of “inherited regulation” is imperfect, and it is made impossible where conservative courts demand granular congressional authorization for every agency action.
The urgency of the energy transition is one obvious example, where the effort to address vehicle emissions and electrification standards is already facing challenges under the MQD. In a case before the D.C. Circuit, Texas v. EPA, 15 Republican attorneys general have challenged the Clean Car Rule that the Biden Administration finalized in 2021. That regulation reverses a Trump-era rollback of vehicle greenhouse gas emissions standards. The state AGs rely heavily on the MQD, arguing that the EPA lacks authority to take an action with the potential effect of “substantially restructuring the American automobile market” by essentially requiring a shift toward electric vehicles. In response, the EPA has argued that it is merely tightening existing standards and exercising the same authority under the Clean Air Act that it always has. But the move toward electrification implied by those standards is the kind of regulatory result that seems likely to face scrutiny from courts under the MQD.
Even in circumstances where significant economic and political impacts are less obvious, or not obvious at all, courts are using the MQD to restrict environmental regulations. For example, the Fourth Circuit recently applied the MQD in North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC to hold that the Clean Water Act does not regulate the return of bycatch (unwanted marine life trapped during commercial fishing) to state waters, despite the seemingly clear language of the statute. The Court acknowledged that there is a “plausible textual basis” for Fisheries’ reading, since “pollutant” is defined to include “biological materials.” However, despite the statutory language, and years of agency interpretation of it, the Court found that the MQD applied in this instance, and that the definitions fell short of the specific authorization needed under the doctrine.
Another recent DC Circuit decision rejected certain efforts by the EPA to regulate hydrofluorocarbons (HFCs), illustrating the dangers of scope creep as conservative courts apply the type of regulatory scrutiny suggested by the MQD without even referencing the factors set forth in West Virginia. The opinion (written by two Republican-appointed judges, with one Democratic-appointed judge in dissent) prohibits the EPA from implementing specific measures to track HFCs. HFCs are used in products like air conditioners and refrigerators, but under the Kigali Amendment to the Montreal Protocol and the American Innovation and Manufacturing (AIM) Act, the United States is phasing out HFCs from many of these uses. This is an important step in mitigating the harmful effects of climate change, as HFCs are highly potent, short-lived climate pollutants.
The court acknowledged that the EPA has authority to regulate HFCs. However, it objected to the EPA’s interpretation of its authorizing statute. To effectuate the phasedown, the EPA issued regulations to ensure the statutorily-determined volume of HFC molecules in the U.S. market, including rules requiring QR code labels and refillable containers for shipments of HFCs. Although the EPA cited statutory language that requires the agency to “ensure” an orderly HFC phasedown, as well as provisions that allow the agency to “promulgate such regulations as are necessary to carry out” that phasedown, the court vacated the labeling rules, finding that the AIM Act did not specifically authorize the EPA to adopt container labeling requirements.
The court’s narrow interpretation of the EPA’s authority may have ramifications for federal agencies’ ability to implement other measures. And more broadly, these cases offer a glimpse of how government functions are hampered by courts’ expansive use of the MQD, hobbling agency efforts to enforce their legislative mandates as science develops and market realities evolve.
Immediate Solutions May Depend on the Legislature
The MQD stands as an obstacle to regulatory innovation, and is being used to obstruct government action when the window of time to mitigate the worst effects of climate change is rapidly closing. With predictions that the Supreme Court will remain conservative for many years, Congress may need to respond.
One strategy that may be immediately available is for Congress to offer more specific guidance in federal legislation. Agency delegations could include an illustrative, non-exhaustive list of potential actions authorized by each regulation. In areas where there is agreement, similar efforts might need to be taken to amend existing legislation as well. The problem of Congressional inaction stands as an obvious obstacle to this approach. Indeed, Congress has not enacted a major new environmental statute since 1990. And as with any recitation of exemplars, there is the risk that non-specified actions would be interpreted as beyond the bounds of permitted activity. Still, the approach could potentially placate the growing judicial demand for more specificity.
Alternatively, if the politics would support it, Congress could create a legislative override that would allow it to rapidly react to a court’s overuse of the MQD. Christopher Walker, a scholar who has been honored by the Federalist Society, has posited this idea, suggesting a tool analogous to the Congressional Review Act, which allows Congress to bypass the Senate filibuster and other delay tactics to quickly review final rules issued by federal agencies. Such a mechanism for application of the MQD would have the salutary effect of returning major policy decisions by federal agencies to Congressional review. However, this approach also suffers from its dependence on a responsive, functional legislature to respond nimbly to specific judicial actions. This would be a difficult task for Congress when confronted with only a small number of instances, and as cases proliferate at the district court level it could become even less feasible.
Another, perhaps more appealing, legislative option could be the passage of a Congressional resolution that explicitly rejects the MQD. Because the doctrine is a purported rule of statutory interpretation, Congress may have the authority to instruct the federal courts that it does not intend for its legislation to be interpreted in this manner. Congress could make clear that when it delegates broad authority to federal agencies, its intent should not be circumscribed by a court’s interpretation of the economic or political significance of the agency action, but by the language of the statute and the other, more established tools of statutory construction.
Through the MQD, the Supreme Court has claimed a muscular new authority that tilts the balance of power among our three branches of government, allowing courts to unilaterally unwind the actions of federal agencies taken at the direction of Congress. Absent a forceful response from our elected officials, the accelerating harms of climate change may prove even more difficult to address.