nondelegation doctrine

The New Particulate Standard and the Courts

The tough new air quality standard is sure to be challenged in court. Winning the challenges will be tougher.

EPA has just issued a rule tightening the air quality standard for PM2.5 — the tiny particles most dangerous to health — from an annual average of 12 μg/m³  (micrograms per cubic meter) down to 9 μg/m³. EPA estimates that, by the time the rule goes into effect in 2032, it will avoid 4500 premature …

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What’s a Major Question? (Judicial) Opinions differ.

Scholars don’t know the answer. Nor, apparently, do the federal courts of appeals.

In West Virginia v. EPA, the Supreme Court used the “major question doctrine” to overturn Obama’s signature climate change regulation.  Once an issue reaches a certain level of significance, the Court says, Congress generally would want to make its own decision rather than allowing an agency like EPA to decide. Scholars have criticized the opinion …

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Upcoming Regulatory Cases in the Supreme Court

Two pending cases could result in big cuts to agency powers

Three weeks from today, the Supreme Court starts its 2023 Term. There are two blockbuster cases on the docket.  In one case, the issue is whether to overrule the Chevron case, which has been foundational to administrative law for the past four decades. In the other, the issue is agency power to sanction violations of …

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Whose Major Questions Doctrine?

There are two versions of the doctrine. One of them is more dangerous.

When it  struck down Obama’s signature climate regulation in West Virginia v. EPA, the Supreme Court formally adopted the major questions doctrine as a way to synthesize prior anti-regulatory rulings.  The major questions doctrine (MQD to insiders) has gotten a lot of attention. One thing that’s been overlooked, however, is that there are two versions …

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Emerging Answers to Major Questions

We’re beginning to get a clearer understanding of the major questions doctrine.

In November, I wrote a post posing “some major questions about the major questions doctrine.” In West Virginia v. EPA, Chief Justice Roberts starts supplying some answers to those questions. In particular, he seems to be   using a narrower four-factor approach to decide what constitutes a “major question.” As we all know, the West Virginia case …

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Major Questions About Today’s Big Climate Case

Here’s what you need to know about today’s oral argument in W. Va. v. EPA

The Supreme Court is hearing oral argument this morning in West Virginia v. EPA. The case is a challenge by the coal industry and coal states to EPA’s power to limit carbon emissions by power plants. Here’s what to look for today. Q: What is the case about? A: In practical terms, the question is what EPA …

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Today’s Vaccine Cases: Implications for Climate Change Regulation

Today’s ruling are (somewhat) good news in terms of West Virginia v. EPA?

Today, the Court’s conservative Justices split the difference in two cases involving vaccine mandates, striking down OSHA’s mandate but upholding a more limited mandate for healthcare workers. The cases also split the conservative Justices themselves, with three hardliners (Thomas, Alito, and Gorsuch) seeking a more activist ruling in the OSHA case and dissenting in the …

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Major Questions About the Major Questions Doctrine

You may not have heard of this doctrine but it’s a big threat to innovative regulations.

Unless you’re deeply immersed in administrative law, you may not have heard of the major questions doctrine. It’s a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives.  The doctrine places special obstacles on agency regulations of issues of “major economic and political significance.” In its initial outing, the …

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A Bad Week for Biden, and for Climate Action

First House progressives, and next conservative Justices, poked a stick in the spokes.

President Biden hoped to go to the international climate summit in Glasgow with momentum behind him. He wanted to reestablish US credibility with concrete progress on climate change. Instead, the ability of the US to take action on climate change is shrouded in doubt.  Biden  suffered an embarrassing defeat at the hands of members of …

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The Monument to the Unknown Bureaucrat

Yes, there actually is one. It’s in Reykjavík. And here’s why it’s worth pondering.

Working away in anonymity, a cadre of civil servants keeps the machinery of government working.  There’s actually a monument in Reykjavík, Iceland to these public servants. It shows someone in a business suit carrying a briefcase — or more specifically, the lower half of the person, with the upper half replaced by a block of …

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