Asking Major Questions

In West Virginia v. EPA, decided three years ago, the Supreme Court announced its embrace of the lingering nascent power it called the “major questions doctrine” and used it to exercise significant control over climate policy in a case reviewing President Obama’s Clean Power Plan. In particular, the high court held that EPA may not base its regulation of power plants on the cheapest and cleanest technique—shifting electricity generation from coal-fired power plants to zero emissions renewables and cleaner-than-coal natural gas. The Clean Air Act, however, authorizes the agency to base its rules for power plants on the “best system of emission reduction,” or BSER, and generation shifting to cleaner sources is certainly an emission-reduction system. The Court, in an opinion by Justice Roberts, refused to give effect to the statute’s plain meaning, however, rejecting “routine statutory interpretation” for “economically and politically significant” agency actions. When the agency resolves a major question, the Court declared, the judiciary will not accept novel agency action unless authorized by very specific language in the law.

With President Trump poised to take major actions to defeat environmental protection, one might imagine that the major questions doctrine will come to the aid of a beleaguered EPA. Don’t bet on it. The Supreme Court has never applied it to limit deregulation, but only to limit the executive branch’s power to establish standards protecting public interests, such as the shared interest in a safe environment. Of course, deregulation can have enormous economic and political significance. Failure to reduce greenhouse gas emission can, for example, exacerbate hurricanes, wildfires, and infectious diseases—with devastating economic consequences. But the major questions doctrine is not a neutral construction; rather, it is a deregulatory invention of a radical and partisan Court. Indeed, we can expect Trump to use the precept to justify efforts to destroy federal environmental law, as he did when he rolled back the Clean Power Plan in his first term. Oddly, the Supreme Court ruled on the validity of the Clean Power Plan after Trump had already superseded it with his Affordable Clean Energy Rule, requiring insignificant emission reductions.

While West Virginia v. EPA crystallized the major questions doctrine for the first time, the principle has antecedents in prior cases. In Utility Air Regulatory Group v. EPA (2014), the Supreme Court used the then nascent doctrine to help justify exempting many large emitters of greenhouse gases from statutory requirements to employ Best Available Control Technology and obtain operating permits. The statutory language clearly includes all the large emitters and identifies them with numerical thresholds. It requires regulation of these large emitters of “any pollutant”—a term that includes greenhouse gases under the 2007 decision in Massachusetts v. EPA. But the UARG Court (per Justice Scalia) relied on major questions reasoning and widely shared concerns about the impracticality of applying the numerical thresholds literally to greenhouse gas emitters to overcome the statutory language. (Following the statutory language literally would have swept in millions of pollution sources never before regulated under the CAA.)

While these two examples focus on environmental law, the major questions doctrine has been applied across the universe of government rulemaking, not just to environmental measures. Over the years, the Court has applied major questions reasoning to regulation of assisted suicide (Gonzalez v. Oregon), subsidies for purchasing health insurance in the Affordable Care Act (King v. Burwell), regulation of tobacco (FDA v. Brown and Williamson), measures combating Covid 19 (National Federation of Independent Business v. OSHA), and President Biden’s student loan forgiveness program (Biden v. Nebraska).

The West Virginia Court said that the separation of powers requires judges to nullify agency actions that resolve “major questions.” But that doctrine undermines the separation of powers by aggrandizing the judiciary at the expense of the political branches of government.

In the 1940s, Congress passed and the president signed the Administrative Procedure Act, which established the appropriate parameters of judicial review of agency rules. The APA generally requires administrative agencies such as EPA to provide the public with notice of a proposed rule and an opportunity to comment prior to decision. The federal courts can review challenged rules and set them aside if they are “contrary to law” or arbitrary and capricious.

In the past, courts have respected the separation of powers by serving as faithful agents of Congress. They generally countermanded execution of the law only when an agency had violated statutes (or made arbitrary decisions). They allowed the president to faithfully execute laws through the actions of his appointees at various agencies, even when doing so had major consequences. For example, EPA phased out lead from gasoline in the 1970s and 1980s and some ozone-depleting chemicals later on. Judges saw their role as one of ensuring fidelity to congressional policy decisions, rather than of implementing conservative judges’ preferences for small government.

Today, the Court justifies the major questions doctrine’s extraordinary departure from hundreds of years of traditional statutory interpretation by casting the principle as preserving congressional authority to decide major questions itself. But the doctrine does not preserve congressional authority. It undermines the work of the Congress that enacted the law giving rise to a major questions case without adding to the powers of existing or future Congresses.

The doctrine interferes with the enacting Congress’s power to establish policy through general laws. Congress must establish general policies through legislation in addressing many complex problems—such as that not only of environmental protection, but also providing safe food and drugs and ensuring stable and honest financial markets. Thus, the CAA, for example, aims to provide a healthful and safe environment by requiring EPA to establish National Ambient Air Quality Standards that protect public health with an adequate margin of safety. It also requires regulation of polluters based on either Reasonably Available Control Technology or, more strictly, BSER, the Best System of Emission Reduction mentioned earlier (for example). Congress’s vast responsibilities preclude setting and periodically updating precise pollution limits for all major emitters. It necessarily relies on agencies to implement its policies. EPA establishes numerical emission reduction requirements for categories of pollution sources chosen to conform to the detailed statutory language establishing federal environmental policy. And Congress usually enacts legislation precisely to resolve major questions by establishing enduring policies to address them in the expectation that agencies will use their expertise to translate those policies into specific measures. Congress cannot establish important policy in significant areas like implementation of the Legislature’s general environmental policies if the Court uses the significance of an application of the statute as a reason to prevent its implementation.

By declining to allow EPA to base its rule on the BSER, if that system happened to involve generation shifting, the West Virginia Court basically amended the statute. The law used to be that EPA’s rules under the Clean Air Act’s Section 111 must reflect the BSER, but now the law is that EPA must use the “best system” not including generation shifting. Similarly, the UARG Court, in effect, amended statutory language when it held that only some of the “major sources” identified in the statute needed to comply with the CAA.

But the Constitution assigns the function of amending statutes to Congress, not the courts. And the Founders deliberately designed amendment to be difficult in order to foster stable law. Amending a statute requires the same arduous procedure that governs a statute’s initial enactment. And Senate filibuster rules make lawmaking even more difficult by in effect requiring a super-majority in the Senate to amend (or enact) legislation. The Constitution does not authorize nine unelected justices or a single appointed lower court judge to amend a statute, which is what the major questions doctrine authorizes. The Court violates the separation of powers when it enacts statutory amendments that Congress itself has failed to adopt. The Court, in effect, acts as an agent of an anti-regulatory minority in Congress that lacks sufficient public support to pass legislation, when it employs the major questions doctrine to limit broad statutory mandates in existing law. The doctrine usurps the function of Congress and creates politically unaccountable policy changes not authorized by the Constitution.

Nor does the doctrine protect the prerogatives of the current or future Congress. They always have the authority to overrule agency-promulgated standards protecting the environment, no matter how the courts rule. In fact, Congress has made it easier to pass legislation overturning agency standards than to establish new general policies through the Congressional Review Act, which provides for expedited congressional review of controversial recent agency actions.

The Court may imagine that its vetoing of major rules protecting the environment forces Congress to act. Indeed, Congress responded to the Supreme Court’s 2000 decision overturning regulation of tobacco under the Food, Drug, and Cosmetics Act by authorizing such regulation—but only after nine years. In fact, Supreme Court regulatory decisions rarely lead to action in Congress. And this is especially true in an era of intense partisan polarization and growing corporate power over politics (enhanced by the Supreme Court’s rulings gutting limitations on campaign financing). Since the Court cannot predict whether its actions will lead to legislation in Congress, it must recognize that its resolution of major questions may permanently resolve many of them in favor of the industries its rulings protect.

Justice Gorsuch has argued that the major questions doctrine serves the nondelegation doctrine, and other justices have at times signaled their agreement. The Court as a whole, however, has never embraced this rationale, for good reason. This doctrine maintains that Congress may not delegate its legislative authority to either the executive or judicial branch of government. The Court has only struck down two statutory schemes under this principle, both in the 1930s. Before and after those two anomalous cases, the Court maintained that legislation containing an “intelligible principle” to guide executive branch discretion does not violate the nondelegation doctrine. And it has found intelligible principles in legislation offering much less policy direction than that found in the enormously detailed CAA—or in other environmental legislation. In NBC v. United States, for example, it upheld a statute authorizing regulation of broadcasting through standards serving “the public interest, necessity, or convenience.” And in Yakus v. United States it upheld a statute authorizing “fair and equitable” price controls. Effective democracy under a rule of law requires this deferential approach. Congress cannot meaningfully address complex modern problems without the ability to write general policies into law. And the question of how much generality is too much is an intractable question that judges have no competence to resolve—as the Supreme Court has recognized repeatedly. Legislation necessarily requires implementation by the executive branch and/or the judiciary. And implementation of legislation demands subsidiary policy judgments like the one EPA made in enacting the Clean Power Plan.

The major questions doctrine does not solve any lurking nondelegation problem, because it fails to prevent delegation of legislative authority. If one views the decision to require the BSER (for example) as a delegation of legislative power, EPA cannot cure it by narrowly interpreting its authority. The Supreme Court recognized that statutory construction cannot cure a nondelegation problem in an earlier case, decided in 2001, Whitman v. American Trucking Associations. In that case, plaintiffs argued that EPA must consider cost in establishing National Ambient Air Quality Standards to protect public health with an “adequate margin of safety.” The plaintiff claimed that the nondelegation doctrine required this action. Justice Scalia, however, recognized that adopting a narrowing construction of delegated authority would itself constitute an exercise of legislative authority. The same principle applies to delegation of authority to courts. If judges narrowly construe a statute, they too exercise legislative authority. They do not cure a nondelegation defect if one exists. In this connection, it’s important to understand that when the courts overturn an agency rule as resolving a “major question,” they do not leave the question open. They resolve the major question—in almost all cases—based on their preference for lax regulation. Transferring delegated authority from the executive branch to the courts can never solve a nondelegation problem.

The doctrine also violates separation of powers by interfering with the president’s executive power. Under the Constitution, the president must “take care that the laws be faithfully executed.” A conscientious president does this by appointing agency heads committed to executing the law. For many rules which might pose “major questions,” the White House has signed off on the challenged rule, often through review by the Office of Management and Budget’s Office of Information and Regulatory Affairs, which has authority to review rules having an economic impact of $200 million or more.

The Court shows no sign of appreciating that its major questions rulings limit presidential power to execute the law. This Court seems to view government agencies as illegitimate, even though we have had active agencies since Alexander Hamilton headed the Treasury Department under George Washington. (Of course, their number has grown greatly as our population has expanded and the economy become more complex.) But as a practical matter, elected presidents play a big role in what agencies do, especially with respect to major rules. So, the major questions doctrine interferes with presidential power to execute law, not only agency power. It allows appointed judges to supersede implementation decisions by a nationally elected president.

Accordingly, the major questions doctrine undermines the rule of law. The rule of law is predicated on the idea that established law remains in place and active until such time as Congress chooses to amend it, even if some of its applications are significant and politically controversial. The major questions doctrine, however, allows special interests and their allies to disrupt implementation of law by simply stirring up political controversy about novel standards they do not like. The Court has substituted defense of special interests and their allies for adherence to the rule of law in these cases.

It is hard for people to grasp that the Supreme Court can be an enemy of the rule of law. We tend to identify the rule of law with obedience to court decisions. But the rule of law requires that law apply equally to the powerful and the powerless and that it have some identity independent of politics. The major questions doctrine, along with the Dobbs decision overturning the abortion rights precedent and Trump v. United States, in which the Court immunized the president from compliance with criminal laws when performing official duties, show, however, that this Court is undermining the rule of law. When the justices overturn an environmental standard because of its significance and not because of its violation of a statute, it is undermining the rule of law in favor of juristocracy.

West Virginia v. EPA has turned major questions arguments into a staple of industry challenges to environmental standards (and other standards). Regulated companies and their state allies have claimed that recent standards updating the Clean Power Plan in response to West Virginia v. EPA and strengthening standards governing vehicle emissions violate the major questions doctrine. The Court has not established a “majorness test” to govern this burgeoning area of litigation. As a rule, conservative judges routinely find major questions in government actions they do not like, and liberals almost never discover any. So, the doctrine, as an ideological product of a partisan Supreme Court, has widened ideological fissures in the lower courts.

The 2024 Loper Bright decision overturning Chevron deference has attracted even more attention than the major questions doctrine, probably because it overturns prior precedent, reminding people of Dobbs. But Loper Bright may not pose quite the threat to environmental protection that the major question doctrine does.

Before 2024, the Supreme Court had held that judges must defer to reasonable expert agency construction of ambiguous statutes, in a 1984 case called Chevron v. Natural Resources Defense Council. But Loper Bright discarded this deference, allowing judges to decide for themselves how to construe ambiguous statutes, albeit with some deference to agency technical judgments.

In principle, Loper Bright, unlike the major questions doctrine, is not necessarily anti-environmental. It increases judicial power to reject both deregulatory and regulatory actions. The conservative judiciary may be more likely to use this newfound control over statutory grey areas to check environmental protection than to check erosion or discarding of environmental standards. But Loper Bright makes some judicial checking of Trump’s efforts to gut environmental law more likely, not less. Last time around, Trump lost an astonishing high number of his environmental cases (more than 80 percent), even though courts felt obliged under Chevron to defer to his administration’s construction of ambiguous statutes.

One wild card involves potential interactions between the major questions doctrine and Loper Bright. Some agency lawyers imagine that Loper Bright will lead to abandonment of the major questions doctrine. With judges able to exercise substantial control over the executive branch under Loper Bright, maybe they will abandon the widely criticized and overtly anti-regulatory major questions doctrine.

That may turn out to be wishful thinking rooted in a misunderstanding of the major questions doctrine. In practice, the Supreme Court has most often used the doctrine not to resolve genuine statutory ambiguities, but to overcome plain statutory language authorizing what the president has decided to do. That is obviously true not only in the CAA cases but also in the Covid cases. In Alabama Realtors (2021), the Court struck down an eviction moratorium designed to limit the spread of the pandemic in spite of statutory language authorizing “regulations . . . necessary to prevent” interstate transmission of disease. In National Federation of Independent Business v. OSHA (2022) the Court struck down a requirement for vaccination or masking and testing of employees of large companies plainly allowed by statutory language authorizing rules “necessary” to protect employees from “grave danger from . . . new hazards.” Loper Bright generally does not create authority for judges to deregulate in cases like that where the statutory language plainly authorizes what the executive branch has done. It only offers an adequate anti-regulatory substitute for the major questions doctrine when a statute is ambiguous and the agency seeks to regulate in important ways.

The Loper Bright decision, however, may intersect with other judicial concerns to rein in the major questions doctrine, which legal scholars widely condemn as an illegitimate ideological power grab by conservative justices. Although the West Virginia Court identified the separation of powers as a justification for the doctrine, the justices have never provided a specific separation of powers argument for the doctrine. And the available arguments are specious, as I have shown in more detail in a recent Illinois Law Review article.

Justice Barrett, for one, has signaled doubts about grounding the requirement in the nondelegation doctrine and suggested some concern with the major questions doctrine’s tension with textualism (allegiance to statutory text) in a concurring opinion. In Biden v. Nebraska (2023), the Court struck down President Biden’s student loan forgiveness program. Justice Barrett concurred separately to cast the major questions doctrine as a means of applying “context” and “common sense” to statutory construction. She also argued that the doctrine does not authorize contradiction of statutory text.

Other justices may share her concern about the doctrine’s tension with textualist commitments conservative judges claim to have. And the failure to agree on a specific separation of powers rationale may indicate that some of them see that the constitutional arguments for the doctrine are very weak.

The West Virginia Court envisioned the doctrine as only applying in unusual cases. The high court will soon learn, however, that lower court judges are applying it profligately. That may create some pressure on the justices to rein it in. One way of doing that would be to refuse to apply it to overturn plain statutory text, as suggested by Justice Barrett.

But the Court’s constitutional doubts about the “administrative state” likely lie at the heart of many justices’ commitment to the doctrine. And the doctrine will not fade way just because the narrow power grab in Loper Bright makes some applications of the major questions doctrine unnecessary for conservative judges eager to undermine environmental standards.

Instead, lawyers need to argue that the doctrine must be rarely if ever employed to avoid intrenching on the separation of powers. Environmental lawyers (and other administrative lawyers) will not succeed in the long run if they remain silent in their briefing on the speciousness of the Court’s constitutional conceits. The days when a good statutory argument on its own is enough are gone.

Government lawyers and their allies may convince judges not to apply the major questions doctrine to some cases. Over time, however, conservative judges will likely expand the doctrine unless there is some pushback on the constitutional motivations that drive this interpretation. Deciding which actions are significant and novel enough to trigger the major questions doctrine requires political judgments. And judges’ political leanings will strongly influence those judgments. As Trump swings the judiciary yet further to the right, the number of cases that seem worthy of special judicial treatment under the doctrine will multiply. But conservative judges identify themselves with judicial modesty and textualism. Constitutional pushback may enable the justices to see that they are violating their core constitutional commitments when they make major questions rulings by violating the separation of powers, pursuing judicial aggrandizement, and overriding clear (even if general) statutory text.

The major questions doctrine is deeply conservative in the political sense. It treats major novel actions of the executive branch as illegitimate, thus elevating conservative preferences for small government and the status quo into quasi-constitutional principles. Along with Dobbs, Trump v. United States, and some of the justices’ apparent corruption, it is undermining respect for the Supreme Court.