West Virginia v. EPA: Some Answers about Major Questions

Cato Supreme Court Review, Forthcoming

Case Legal Studies Research Paper No. 2022-8

39 Pages Posted: 3 Aug 2022

See all articles by Jonathan H. Adler

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: August 2, 2022

Abstract

In West Virginia v. Environmental Protection Agency (WV v. EPA) the Supreme Court rejected an expansive reading of Section 7411 of the Clean Air Act. Expressly invoking the 'major questions doctrine' for the first time in a majority opinion, the Court concluded Section 7411 of does not allow the EPA to require generation shifting to reduce greenhouse emissions. This decision rested on the longstanding and fundamental constitutional principle that agencies only have that regulatory authority Congress delegated to them. The Court further bolstered the argument that delegations of broad regulatory authority should not be lightly presumed, but also left substantial questions about the major questions doctrine unanswered. By skimping on statutory analysis and front-loading consideration of whether a case presents a major question, the also Court failed to provide much guidance for lower courts. While WV v. EPA represents a missed opportunity to clarify and ground the major questions doctrine, it remains a tremendously important decision, and will be cited routinely in legal challenges to new regulatory initiatives. While limiting the scope of Section 7411, the decision did not curtail the EPA’s traditional air pollution control authorities, nor does it preclude the EPA from using such authorities to regulate GHGs. It does, however, make it more challenging for the EPA or other agencies to develop new climate change policies relying upon preexisting statutory authority directed at other problems.

Keywords: West Virginia v. EPA: Some Answers about Major Questions

JEL Classification: K32

Suggested Citation

Adler, Jonathan H., West Virginia v. EPA: Some Answers about Major Questions (August 2, 2022). Cato Supreme Court Review, Forthcoming, Case Legal Studies Research Paper No. 2022-8, Available at SSRN: https://ssrn.com/abstract=4179468

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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