WV v. EPA: Some Answers about Major Questions (But Not All the Answers We Need)
In West Virginia v. Environmental Protection Agency, the Supreme Court correctly concluded that the Obama Administration and U.S. Court of Appeals for the D.C. Circuit embraced an overbroad understanding of the EPA’s authority under Section 7411 of the Clean Air Act. The way the Court reached that conclusion left something to be desired, however. As I discuss in my forthcoming analysis of the case for the Cato Supreme Court Review, the Court front-loaded its consideration of the major questions doctrine and failed to fully engage with the relevant statutory provisions. It also missed an opportunity to refocus the major questions doctrine on what really matters in cases like this: What power to Congress delegate to the agency.
A draft of West Virginia v. EPA: Some Answers about Major Questions, is up on SSRN. Here is the 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
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