The United States Supreme Court made headlines in 2022 for its decision in the Dobbs v.
Jackson Women’s Health Organization case that effectively overturned the decades-old ruling in Roe v. Wade (I wrote about that in the March 4, 2023 blog.) But there was another decision that came out at the same time, called West Virginia v. Environmental Protection Agency, which largely flew under the radar. Even though it didn’t garner the same amount of headlines, this opinion could have even more far-reaching impact than Dobbs in the years ahead.

The case arose from a lawsuit filed by the state of West Virginia against the United States Environmental Protection Agency regarding rules established by the EPA over greenhouse gas emissions from existing power plants in the state.
To understand the origins of this case we have to go back to the late 1960s when air pollution, that was choking our cities in a blanket of smog, gave rise to the environmental movement. As that movement gained traction, Congress and the Nixon administration jumped into action to create the Environmental Protection Agency. They also passed the Clean Air Act, a law aimed at reducing air pollution.

Contained within the Clean Air Act was Section 111(d). That rather innocuous section allows states to set the rules governing the existing sources of generating power within their boundaries, but it also allows the EPA to determine the emissions limits of those power plants.
For decades that provision of the law was seldom used. But in 2015, during the Obama
administration, the EPA relied on Section 111(d) as the authority to implement a new regulation called the Clean Power Plan. The new rule addressed carbon dioxide emissions from existing coal and natural-gas-fired power plants. The plan required power plants to install more efficient devices to limit emissions of carbon dioxide and it called for power plants to move toward implementing different methods of energy creation, including natural gas and emission-free sources such as wind and solar. That all sounds well and good, but it’s not so easily done.
At the time of the Clean Power Plan’s creation, the Obama White House stated that the plan would “drive an...aggressive transformation in the domestic energy industry.” And the EPA admitted that the rule would “entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired power plants, and eliminate tens of thousands of jobs across various sectors.” That doesn’t sound so well and good. And again, the EPA made those predictions, not some opposition party.
But those predictions were not put to the test because the Clean Power Plan was not
implemented. The same day the EPA announced the plan, 27 states and several other
interested parties petitioned for a review by federal courts and asked for a stay of the rule while it was under review.
Then, with the arrival of the Trump administration, the Clean Power Plan was repealed. The review, however, continued, and in 2019, the EPA itself determined that the Clean Power Plan had exceeded the EPA’s legal authority under Section 111(d). So it seemed that the plan was finished.
But once again, a number of states - this time, states that had supported the Clean Power Plan - filed petitions for review in federal courts challenging the EPA’s repeal of the plan. The D.C. Circuit Court of Appeals held that the EPA’s repeal of the plan had relied on a “mistaken reading of the Clean Air Act,” and therefore the D.C. Circuit Court of Appeals reversed the EPA’s repeal. That meant that the plan was back on. And that’s when the case ended up being heard by the United States Supreme Court.
The issue presented to the Court was whether the United States Constitution gives Congress the authority to delegate broad regulatory power to the EPA related to greenhouse gas emissions.
More specifically, the Court framed the issue as whether under Section 111(d) of the Clean Air Act, Congress had authorized the EPA to issue rules - including those capable of reshaping the nation’s entire electricity grids and unilaterally decarbonising virtually any sector of the economy - without any limitations on what the agency can require so long as it considers cost, non-air impacts, and energy requirements. In a nutshell, the Court concluded that Congress had not authorized the EPA to issue those rules.
The Court held that Congress must provide clear direction to the EPA - rather than a broad delegation of power - for the agency to regulate greenhouse gas emissions. The Court’s 6-3 decision reversed the D.C. court’s previous ruling.
To reach that conclusion, the Court relied on something called the “major questions” doctrine. The doctrine, which had never been invoked by a majority of justices, says that courts should not defer to government agencies on matters of “vast economic or political significance” unless the U.S. Congress has explicitly given the agencies the authority to act in those situations. By invoking the “major questions” doctrine, the Court found that the EPA exceeded its authority under the Clean Air Act when it passed the Clean Power Plan.
Put another way, the Court determined that the EPA had overstepped its bounds and, without explicit authority from Congress, the Clean Power Plan was not to be implemented.
It’s this part of the Court’s ruling that could have far-reaching impact. To understand why, we need to do a quick civics review. Recall that the United States government consists of three co-equal branches - the legislative, which is the House of Representatives and the Senate; the judicial, which is the Supreme Court; and the executive, which is the President. The legislative branch passes laws, and the executive branch administers those laws through its various agencies. The system is meant to create a separation of power, so that no one branch or one person becomes too powerful.
At least that’s how it’s supposed to work. But over the years there has been a steady drift of power from the legislative branch to the unelected administrators of the executive branch. Agencies such as the IRS, the EPA, the Department of Education and many others have gained much more power than was ever contemplated by the Founding Fathers, who feared this very thing.
As a result, the massively expanded administrative state has permitted the executive branch to function as a quasi-legislative branch, pushing us toward a monarchy-like system.
How this came to pass is a long story for another time. Suffice it to say that it didn’t happen overnight and there is plenty of blame to go around. But it is what led the Court to state that the major questions doctrine “refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”
In its written opinion, the Court was critical of the scope of the regulatory reach of federal agencies. The majority stated that in “extraordinary cases” where agency regulation is of particular “economic and political significance,” a federal agency must be able to point to clear congressional authorization for the power it asserts. The Court concluded that the legislation relied upon by the EPA - Section 111(d) of the Clean Air Act, lacked the necessary evidence of congressional authorization needed to permit the agency to implement the Clean Power Plan.

By invoking the “major questions” doctrine to at least partly stymie the power of the EPA, the Court laid the groundwork to rein in the runaway power of other federal agencies and the executive branch’s invasion of Congress’s authority. (In a future blog, we’ll see how this groundwork led the Court to a seismic re-balancing of constitutional powers in another landmark case that overturned the so-called Chevron doctrine). This West Virginia ruling should impact regulations well beyond the Clean Air Act, the power grid, emissions or anything to do with greenhouse gasses The EPA is already looking for ways to work around this ruling. But this Court decision could start to stem the tide of the unchecked power of federal agencies to regulate without explicit congressional authority, and thus return some power to we, the people.
Let us hope.
BY Kevin Diehl
Comments