While the nation speculates about whether the overruling of abortion rights in Dobbs v. Jackson Women’s Health Organization, Case No. 19-1392, ___ U.S. ___ (2022), signaled more rollbacks of privacy rights in the future, the U.S. Supreme Court’s decision erasing the EPA’s plan for greenhouse emissions may be a barely perceptible landmark in an ongoing campaign to limit the power of federal agencies. Decided less than a week after Dobbs by the same 6-3 majority, the immediate consequences of West Virginia v. Environmental Protection Agency, Case No. 20-1530 ___ U.S. ___ (2022), are a dramatic defeat for the cause of controlling emissions. Less obviously, it is potentially a transformative decision reducing the power of the president to create rules for industry that have political and business consequences.
Almost all Americans regularly experience the pervasive power of federal agencies. Announcements about interest rates from the Federal Reserve can inspire hope or despair for home buyers. And the acronym agencies such as the FDA, SEC, FCC and CDC oversee everything from the approval of potential cancer cures and recalls of baby formula to a vast array of government benefits ranging from student loans to food stamps. While continuously present in our daily lives, their source of power is less well known. They have dual identities. While created by congressional legislation, the officials who direct operations and set policies are appointed by the president. Along with important enforcement and adjudication prerogatives, presidential appointees deploy seemingly legislative powers to create new policies, interpretations and even legislative-type regulations with the force of a Congressional statute.
Especially in times of Congressional log jams, the executive branch agencies give a president a form of legislative power so that the agencies can develop rules to fill in gaps that Congress has not or will not fill. This power shift to the executive branch began in the 1930s. By 1952, Supreme Court Justice Robert Jackson wrote, “The rise of administrative bodies has been the most significant trend of the last century and perhaps more values are affected by their decisions than by all the courts …” In the ensuing decades, presidents of both parties have increasingly relied on executive branch agencies to carry out their agendas, especially when the legislative branch does not advance their programs.
In 1984, the Supreme Court decided the landmark case of Chevron v. National Resources Defense Council, 467 U.S. 837 (1984), which established that federal agencies such as the Environmental Protection Agency are accorded significant deference in their applications of statutes they are charged with administering due to their technical experience and expertise. The court found that the EPA could appropriately fill gaps in congressional laws for air and water quality with its own legislative rules because of its greater experience and knowledge concerning complex environmental issues. This principle, known as Chevron deference, quickly became a cornerstone of the law of executive branch agencies. This deference reduced judicial involvement and accorded agencies a bigger voice in creating legislative-type rules. Rather than judges without technical training filling the gaps of uncertain laws in complex areas such as environmental regulations, drug approvals, labor standards and pandemics, those details were effectively assigned to the federal agencies led by presidential appointees. Following Chevron, thousands of federal decisions have recognized that, when an agency’s expertise is evident, and so long as it did not make obviously wrong decisions, the agency’s interpretation should be accepted by the courts.
In West Virginia v. EPA, these well-settled principles of deference are strikingly absent from the majority and concurring opinions, even though the court recognized the EPA’s role as the primary regulator of greenhouse gases. In efforts to address this enormous challenge, the EPA had initially promulgated the Clean Power Plan rule during the Obama administration. Rather than simply set limits on pollutants at individual coal-fired plants, the EPA was attempting to impose sector-wide shifts moving to cleaner sources of electricity generation. For example, instead of coal producing 38% of electricity for the United States in 2014, the EPA’s programs would have created a structure for reducing coal to 27% in 2030, moving production to cleaner sources such as gas and non-renewables. Repealed by the EPA during the Trump administration, the basic framework was being revisited by the Biden administration.
Those efforts have been invalidated. Writing for the majority, Chief Justice John Roberts concluded that Congress had not explicitly authorized the EPA to address carbon emissions by imposing a system that establishes an optimal mix of energy sources nationwide. While not questioning the EPA’s expertise, the chief justice concluded that authorization for such a significant program would require specific statutory language from Congress. Justice Neil Gorsuch, a long-time critic of Chevron and the expansive powers of federal agencies, wrote a concurrence emphasizing factors such as “great political significance” and economic impact as the rationale for the major decisions doctrine.
Justice Elena Kagan’s dissent emphasized the evidence that confirms global warming, “… with the six warmest years on record all occurring in the last decade.” She pointed to multiple sources of statutory authorization for the EPA’s role in prioritizing cleaner sources of electricity. One such example is Section 111 of the Clean Air Act empowering the EPA to regulate a source that “causes or contributes significantly to air pollution” and “may reasonably be anticipated to endanger the public welfare.” But, under the major decisions doctrine, previous modalities of statutory interpretation would be supplanted by revised judicial tests that will inevitably increase the failure rate for executive agency actions.
In West Virginia v. EPA, the Supreme Court not only reduced the power of the EPA to regulate greenhouse gas emissions, it appeared to aim squarely at reducing the power of federal agencies whenever questions are considered politically and economically important. Inevitably, reducing agencies’ power diminishes presidential power. Although announced like an old friend, the “major decisions doctrine” is not only a new term, it crystallizes a new judicial doctrine for nullifying decision-making authority by presidentially appointed agency heads in the most consequential cases. Meanwhile, the Chevron doctrine of judicial deferences to agency expertise may have become an unwanted guest who overstayed its welcome.
Because the Supreme Court usually considers only important cases, this “major decisions doctrine” may have a dramatic impact on other cases defining the authority of the executive branch. Some compared West Virginia v. EPA to the ill-fated 1905 Supreme Court decision of Lochner v. New York, 198 U.S. 45 (1905), which was relied upon to strike down portions of President Franklin Roosevelt’s progressive New Deal legislation during the 1930s. FDR fought back. Threats circulated of potential legislation to “pack the court,” that is, to add enough favorable justices to assure favorable rulings. The court backed down and FDR’s New Deal overcame judicial opposition. That scenario, though, will not be reprised. President Joe Biden has already rejected calls to “pack the court” even after the momentous overruling of Roe v. Wade.
In reducing the authority of executive agencies, the “major decisions doctrine” itself has sparked no outcry. Understandably, the setback for efforts to combat global warming captured the public’s attention rather than a seemingly technical issue of administrative law. But the reduction of executive agency power will likely have long-term and wide-ranging implications for Presidential powers, especially in times of Congressional deadlock. And calls for that shrinkage did not come from Congress. In all the 38 years in which Chevron has endured, Congress has not diminished its principles. Had Congress objected to Chevron, “… it knows how to speak in plain terms when it wishes to circumscribe” agencies. Arlington v. FCC, 569 U.S. 290, 296 (U.S. 2013). Illustrating that possibility, in 2018, Florida enacted an amendment providing that state courts “may not defer to an administrative agency’s interpretation of such statute of rule …” FLA. CONST. ART. V. Section 21.
Rather than Congress seeking a revision, it is instead the Supreme Court, with the same six justice majority that overruled Roe v. Wade, that has fashioned a nullification tool for the judiciary to deploy. Whether or not this constitutes judicial activism, it is nonetheless clearly an instrument for erasure that comes at the expense of executive branch decision-making—and when political and economic issues ascend to a zenith of importance.
Kendall Coffey is a founding member of Coffey Burlington, concentrating on complex litigation at trial and appellate levels in federal and state courts.
Read More: EPA Setback: Is Supreme Court Now More Willing to Override Executive Branch Decision-Making?