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How Agencies Should Respond to West Virginia v. EPA


Todd Phillips (@tphillips) is a policy advocate in Washington, DC.

Daniel E. Walters (@DanielEWalters_) is Associate Professor of Law at the Texas A&M University School of Law.

Last week, in one of the most anticipated and feared decisions of the term, the Supreme Court held that the EPA lacks authority under the Clean Air Act to require power plants to achieve the “best system of emissions reduction” by shifting from coal-fired power plants to cleaner natural gas and renewable sources of electricity. The holding had the potential to be far broader—indeed, to imperil the administrative state as we know it—but instead the Court’s decision left the door open for agencies to continue pursuing bold regulations that serve the public interest. The question remaining is whether agencies will walk through that door.

The worst-case scenario in West Virginia v. EPA was that the Court would resurrect the long-moribund nondelegation doctrine. That doctrine, which places hard constitutional limits on Congress’s ability to delegate powers the Court deems “legislative” to administrative agencies, would effectively cripple the administrative state as we know it. Although the Court has not enforced that doctrine for decades (and was rightly rebuked for having done so), it is something of a dream of the conservative legal movement to use the doctrine to rein in what its adherents view as “delegation running riot.” Several years ago, Justice Gorsuch suggested that the Court should prohibit Congress from ever delegating anything more than the power to “fill in details” in otherwise reticulated statutory schemes. As Justice Kagan correctly observed in that case, Gorsuch’s approach would render most of modern government unconstitutional. When the Court shocked the administrative law community and granted the petition for certiorari in this case—one whose odd procedural posture made it easy to ignore—many feared that the nondelegation doctrine was on the table.

Instead, the Court embraced the so-called “major questions doctrine” (MQD). Unlike the nondelegation doctrine, which constitutionally limits Congress’s authority, the MQD appears to be a clear statement rule of statutory interpretation. As the majority opinion recounts, there are two steps involved with the MQD: first, a determination that the topic of the interpretation offered by an agency is “major” enough to trigger the doctrine, and, second, a determination of whether Congress had been sufficiently clear in its legislating that courts can safely assume Congress intended the agency to address the major question. If Congress hadn’t been sufficiently clear, then it does not matter whether the text of the statute could bear the meaning the agency assigned to it—as the Court put it, “something more than a merely plausible textual basis for agency action is necessary.” When the question is major (by some subjective standard) and Congress did not incontrovertibly demonstrate intent to delegate authority to the agency, the agency will lose the right to implement that statute to address the major topic until Congress comes back and more clearly authorizes it through new legislation. (True textualists everywhere shed a tear at this textually unhinged inquiry.)

And here is where the Court has left the door wide open. There is no majority for Justice Gorsuch’s preferred approach under the nondelegation doctrine, and indeed his conservative compatriots are rapidly losing interest in embracing the nondelegation doctrine (Chief Justice Roberts and Justice Thomas had previously joined opinions authored by Justice Gorsuch expressing interest in the doctrine, but conspicuously declined to join Justice Gorsuch’s concurring opinion in West Virginia v. EPA). Instead, after West Virginia the center of gravity on this anti-regulatory Court has moved toward the MQD approach, which trades a constitutional rule for an interpretive standard that is as narrow or as broad as the courts applying it want it to be.

In the ordinary case, that will be courts other than the Supreme Court. Indeed, the Supreme Court hears about 65 merits cases each year, while the lower courts hear tens of thousands. Although former President Trump had great success packing the federal courts with right-wing ideologues, the reality remains that the lower federal courts are far more ideologically diverse than the Supreme Court. The great challenge that the Supreme Court faces now will be ensuring that the lower courts do not water down the raw potential of the MQD. That will be a significant hurdle, even if the green light to apply the MQD enables some conservative lower court judges to be increasingly skeptical about agency actions.

The numbers favor the administrative state in the upcoming battle. Only a fraction of each court’s dockets comprises challenges to agency action. Yet the administrative state issues several thousand rules every year, as well as countless guidance documents and policy statements. Even assuming that the Supreme Court dedicates its entire certiorari docket to reviewing administrative cases, and even assuming that half of the lower court cases end up before relatively conservative panels of judges, there is still a vast swath of agency action that will not be reviewed at all or that will be reviewed by judges that are much less likely to apply the MQD in the way five Supreme Court Justices would prefer it to be applied.

It would be one thing to manage this challenge if the Court had been able to articulate clear, objective criteria for when lower courts should apply the MQD. Then the Court could perhaps count on agencies and liberal and conservative lower court judges to dutifully apply the MQD to limit agency power. But the guidance the Court offered is only marginally better than “we’ll know a major question when we see it.” To figure out whether the MQD applies, courts and agencies are supposed to look at highly subjective criteria like whether an agency’s “expertise” matches the problem, or whether a statute is “long-extant” or not. These guidelines are as mushy as they come—a testament to the difficulty of drawing hard lines in the sand in this area of the law. A Supreme Court truly hell-bent on deconstructing the administrative state could have done far worse.

To be sure, if the Court aggressively deploys its shadow docket to uphold national injunctions from outlier circuits, such as the Fifth Circuit, that could partially limit agencies’ ability to avoid application of the MQD. Effectively, the Court could slightly increase its opportunities to declare that agency actions are subject to the MQD. Yet even in recent years the Court’s use of the shadow docket to reach controversial issues has been limited to tens of cases. The Court would have to significantly increase its use of this mechanism—and pay the political costs of doing so—to meaningfully constrain agencies.

Given this hard institutional reality, the only way that West Virginia will meaningfully decrease the power of the administrative state is if agencies decide to clip their own wings. And there is no reason they should do so. In fact, they should play to their numerical advantages and take chances. Agencies will lose every battle over statutory meaning that they don’t choose to fight, but they’ll win at least some proportion of the time when they do act. The math is simple: By being aggressive, agencies maximize their chances to make positive impacts on the public and avoid the worst impacts of the MQD.

The worst mistake agencies can make is to assume that everything they do is likely to be scrutinized by a hostile judiciary. That assumption is simply not true, and the conservative Supreme Court majority has given them an opening to exploit that fact by formulating the doctrine the way it did. It is not illegal for agencies to push the envelope until the Supreme Court says it is—that is the compromise that the Supreme Court made in setting aside the nondelegation doctrine and embracing the MQD. By failing to provide hard legal guidelines to the agencies and courts that will be on the front lines of applying the MQD, the Supreme Court has ensured only that a handful of the most high-profile agency actions will receive the kind of scrutiny the Court gave EPA this term. While that is not an ideal outcome from a progressive standpoint—the high-profile actions draw more attention because they address important topics like climate change, immigration, and civil rights—it is important for agencies and public interest groups to take full advantage of the openings that the Court has left.

Harvard Law Professor Mark Tushnet once lamented what he called “defensive crouch liberalism”—the tendency of liberal or progressive actors to try to minimize losses rather than pushing the envelope. There is a real danger that, with the ongoing drama about how the conservative Supreme Court will redefine the administrative state, agencies will default to defensive crouch regulation rather than pushing for a strong, effective policy for the benefit of all Americans. The takeaway from West Virginia v. EPA, though, should be that much remains in the administrative state’s power should it have the courage to continue to fight for a progressive vision of law and regulation.