West Virginia v. EPA
Will the major questions doctrine block EPA’s proposed rules?
Biden v. Nebraska, the student loan case, provided a new opportunity for the Court to apply the major question doctrine. Does this decision increase the threat that EPA’s proposed new regulations will be struck down under this doctrine? A careful reading of the majority opinion is at least somewhat reassuring. The Court painted a picture …CONTINUE READING
The current Justices are no friends of presidential power.
As recent scholarship has shown, the Supreme Court has been increasingly aggressive in countering exercises of presidential power. From the environmental perspective, West Virginia v. EPA is the most relevant example of the Court’s efforts to cut the presidency down to size. True, the Court purported to be chastising EPA, part of the bureaucracy. Yet …CONTINUE READING
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 …CONTINUE READING
It’s not the game changer some people think, but IRA could help in several ways.
There’s been a lot of recent talk about whether the Inflation Reduction Act (IRA) indirectly overrides West Virginia v. EPA. The answer to that is probably “no.” However, some IRA provisions will help lawyers defend certain regulatory actions. IRA may also have an important framing effect when courts are considering the reasonableness of agency actions. …CONTINUE READING
No, the Court didn’t eliminate EPA’s ability to fight climate change.
The Supreme Court’s ruling in the West Virginia case left many people with the impression that it eliminated the government’s power to regulate carbon emissions. There are quite a number of areas of climate law that the Supreme Court has left untouched. Here’s the EPA authority the Court hasn’t touched: EPA’s jurisdiction over greenhouse gases. …CONTINUE READING
Just because a regulation involves climate change, that doesn’t make it a major question.
Red State AGs are preparing to go to town with the West Virginia case. They seem to think that everything involving climate change automatically becomes a major question. That’s simply wrong. The doctrine is more nuanced. Recall that the Supreme Court struck down OSHA’s vaccine mandate, essentially on major questions grounds, but the majority found …CONTINUE READING
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 …CONTINUE READING
This video lays out the issues, what the Court did, and where EPA can go from here.CONTINUE READING
The Supreme Court is almost certain to cut back on EPA’s power to regulate greenhouse gases. What then?
In West Virginia v. EPA, the Supreme Court is reviewing Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down anyway. The ruling will also restrict EPA’s future options. The big question is what the Biden Administration …CONTINUE READING
A case on the shadow docket may shed light on the Court’s direction.
Court watchers and environmentalists are waiting with bated breath for the Supreme Court to rule on West Virginia v. EPA, the Court’s most important climate change case in a generation. The issue in that case is what, if anything, EPA can do to regulate carbon emissions from power plants and factories. Yesterday, conservative states asked …CONTINUE READING