West Virginia v. EPA: What Would Have Been the Result Under the Chevron Doctrine?
The Supreme Court’s June 2022 decision in West Virginia v. EPA will be remembered for its endorsement of the “major questions doctrine.” The new doctrine, as would have been obvious to all participating justices, is designed to function as an exception to the Chevron doctrine, so named for Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984).
By contrast, this would not be apparent to the casual reader, since Chevron was never mentioned by Chief Justice Roberts in his opinion for the Court, or in the enthusiastic concurrence by Justice Gorsuch. It was mentioned in passing in Justice Kagan’s dissent, but not to suggest that the Court should have reviewed the matter under Chevron.
Silence about Chevron is the order of the day in the Supreme Court. The Court last applied the doctrine in 2016, and it appears that the Court cannot decide what to do about it, although it still gets invoked with some frequency in the lower courts.
In order to assess the significance of the major questions exception, it will be useful to consider how the case would have been decided under the Chevron doctrine, as it came to be understood by the Court in the run up to West Virginia. After all, one cannot fairly judge an exception without understanding the doctrine from which the exception is carved out. This is my purpose in this third blog post in this five-post guest series (here were the first and the second).
As detailed in my recent book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State (Harvard University Press 2022), the Chevron doctrine has undergone significant revision over its almost 40-year life span. In its classical formulation, the doctrine was understood to require courts to accept reasonable agency interpretations of ambiguities in the statutes the agency administers. The Court narrowed the doctrine in United States v. Mead Corporation (2001): the agency must act with the “force of law” in order to be eligible for Chevron deference, as opposed to some lesser degree of deference. But then the Court, in City of Arlington v. FCC (2013), adopted a restrictive interpretation of Mead that effectively expanded the Chevron doctrine.
The Court held in Arlington that it is not necessary to identify a delegation of powe
Article from Reason.com
