Bold Moves Could Run Afoul of Decisions

I’m no fan of West Virginia v. EPA, nor the major questions doctrine it recognized—and not just because I was on the losing side. The Court, I thought, strained to take up a challenge to a Trump power plant rule replacing an Obama rule that had never gone into effect—and even though the evolving electric power sector already out-performed the Obama rule’s emissions targets. The incoming Biden administration was starting a fresh rulemaking; there was no realistic prospect that either predecessor rule would ever take effect.

Having taking up a practically moribund case, the majority might still have restricted itself to exploring whether, under ordinary statutory analysis, the Clean Air Act allowed EPA to predicate emissions limits on shifting electric power generation to sources like wind farms. West Virginia’s “doctrine”-first approach and litany of potential “majorness” factors invited litigants to invoke the doctrine routinely—which they have since done—even as West Virginia insisted it was just for extraordinary cases.

The advent just two years later of Loper Bright v. Raimondo will likely move the doctrine onto the back burner, but ongoing shifts in the Court’s thinking about Chevron should have counseled minimalism about doctrinal innovations. Regardless, coming when it did, West Virginia served as a warning to the new Biden administration: Be careful about doing bold new things with open-ended statutes. (It is noteworthy that the Loper Bright decision would likewise disfavor abrupt interpretive shifts.)

Yet even if easy to disagree about their application in specific cases, West Virginia’s core statutory-construction precepts are hard to quarrel with. The decision insists that statutes should not lightly be read to allow federal administrative agencies to do things that are novel; startling; out of step with prior understandings. The Court grounded this admonition, first, in the “separation of powers” (protecting Congress’s legislative power), and, second, in “a practical understanding of legislative intent” (commonsensical intuitions about elephants in mouseholes).

Nor are these ideas inexorably linked to deregulatory aims. Judge (and Professor) Stephen G. Breyer articulated very similar points 40 years ago in Mayburg v. Secretary of Health and Human Services. Two of the “major questions” precursors cited in West Virginia rejected deregulatory interpretations: MCI Telecommunications Corp. v. AT&T and Whitman v. American Trucking Associations held that EPA could not weaken health-based air quality standards based on cost considerations unmentioned in the statute. Protecting Congress’s prerogative to amend statutes, and scrutinizing surprisingly bold agency interpretations, are no less important when the executive seeks (or is asked) to weaken regulations.

These points have particular salience now. The new Trump administration has signaled intentions to do big and novel things, including in federal environment and energy law, and to slash regulation and the federal government itself. But his legislative majorities are narrow, making statutory changes difficult.

Many of the regulations the new administration will want to eliminate rest on statutes that are explicit in pursuing their public aims, whether limits on pollution or providing for a nonpartisan and expert civil service. These statutes typically give agencies important roles in implementation. When the Trump administration attempts to do its bold things without new legislation, West Virginia-like concerns about protecting Congress’s legislative roles and about implausibly “unheralded” agency rules will come to the fore.

These efforts will test the courts’ willingness to enforce core basic separation of powers and administrative law strictures even against a president who does not take well to being told, “No.” But it is fair to expect courts to enforce constitutional and administrative-law limits regardless of whoever is at the helm.