Penn Carey Law faculty respond to the Supreme Court’s decision in West Virginia v. EPA, which limits the EPA’s role in combatting climate change. In a 6-3 vote, the Court ruled that the U.S. Court of Appeals for the District of Columbia Circuit erred when it interpreted the Clean Air Act to give the EPA expansive power over carbon emissions.
Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science and director of the Penn Program on Regulation, and law professor Allison Hoffman, an expert on health care law and policy, reflect on how the Court applied a “major questions doctrine” in its decision, and what the implication in such a doctrine has, and will have, on future arguments.
“Beyond the West Virginia decision’s implications for administrative law generally, the case will hold important implications for the U.S. Environmental Protection Agency in seeking to address climate change,” says Coglianese. However, “the Court might well be considered in some ways to have affirmed what is basically the equivalent of the nondelegation doctrine under the guise of the Court’s so-called major questions doctrine. The major questions doctrine did not come out of thin air today, as the majority’s opinion built on a number of prior decisions. But [the] decision did show again how much power the major questions doctrine gives any court seeking to put a roadblock in the way of an administrative agency seeking to use flexibility in a statute to solve important problems. What counts as a ‘major’ question, or what will satisfy a court’s demand for clarity in legislation to pass the doctrine’s test, is no clearer today than it was yesterday. Nor perhaps could it ever be very clear.”
“While today’s Supreme Court decision in West Virginia v. EPA concerned the Clean Power Plan rule, its announcement of a ‘major questions doctrine’ will reverberate through healthcare care agencies. The Court wrote that in ‘extraordinary cases’ of ‘economic and political significance,’ an agency must point to ‘more than a merely plausible textual basis’ for action,” says Hoffman.
“Rather, it must show ‘clear congressional authorization.’ In plain terms, with important issues, Congress must delegate clearly. In a dissenting opinion, Justice Kagan referred to the use of this doctrine as a ‘get out of text free card,’ allowing the court to constrain agencies without the hard textual work of scrutinizing what statutes allow.”
Read more at Penn Law News.
