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07/28/2022

Tom Merrill on West Virginia v. EPA
Michael Ramsey

At Volokh Conspiracy, Tom Merrill (Columbia) is guest blogging about the opinion in West Virginia v. EPA.  Here are his initial posts: 

West Virginia v. EPA: An Advisory Opinion?

West Virginia v. EPA: Was "Major Questions" Necessary?

West Virginia v. EPA: What Would Have Been the Result Under the Chevron Doctrine?

The second post highlights one of my main concerns about the majority opinion, which seemed to bypass an ordinary textualist evaluation of the statute to get to the major questions canon.  From Professor Merrill's analysis:

The Supreme Court held in West Virginia v. EPA that the federal agency did not have authority to adopt what amounted to a cap-and-trade system for existing fossil-fueled power plants because this raised a "major question" of "economic and political significance" as to which Congress had not clearly delegated authority to the EPA. But a close reading of the relevant statute, Section 111 of the Clean Air Act, indicates that the EPA has no authority to issue legally binding emissions standards for existing stationary sources—period.

So the Court did not have to create a novel legal doctrine to limit the authority of the Biden Administration to adopt something like the Clean Power Plan. It could have reached the same result simply by paying close attention to the language of the statute that purportedly granted such authority. ...

[some intricate statutory analysis follows]

In any event, the key point for present purposes is that the EPA is given very different authority to regulate new stationary sources as opposed to existing sources. Under Section 111(b)(1)(B), which applies to new sources, EPA is instructed to "promulgate" (and periodically revise) "standards of performance" for new sources. The statute expressly requires that these EPA-promulgated standards be developed using notice-and-comment rulemaking, which is required under the Administrative Procedure Act when agencies issue legally binding legislative rules.

In contrast, under Section 111(d), EPA is instructed to "prescribe regulations which shall establish a procedure similar to that provided by [Section 110] under which each State shall submit to the Administrator a plan which . . . establishes standards of performance for any existing source for any air pollutant [subject to exceptions]." Note that, under subsection (d), it is the states, not the EPA, that "establis[h]" the "standards of performance." EPA's authority is to establish procedural regulations about the manner in which the states are to submit to the EPA the standards they are establishing.

...

All of which suggests the desirability, to which I will return in the last entry (after the forthcoming third and fourth posts), of courts carefully considering the actual authority delegated to agencies, as opposed to ruminating about "major questions."

Agreed.  I have difficulty extracting from the majority opinion whether the Court thinks the statute is (a) ambiguous, so the major questions canon resolves the ambiguity, (b) textually favorable to the EPA, but the major questions doctrine overrides what would be the technically more textualist reading, or even (c) textually favoring West Virginia, with the major questions doctrine confirming that reading.  This seems to be the key passage from the majority:

Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. Utility Air, 573 U. S., at 324. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims. Ibid.

The dissent criticizes us for “announc[ing] the arrival” of this major questions doctrine, and argues that each of the decisions just cited simply followed our “ordinary method” of “normal statutory interpretation,” post, at 13, 15 (opinion of KAGAN, J.). But in what the dissent calls the “key case” in this area, Brown & Williamson, post, at 15, the Court could not have been clearer: “In extraordinary cases . . . there may be reason to hesitate” before accepting a reading of a statute that would, under more “ordinary” circumstances, be upheld. 529 U. S., at 159. Or, as we put it more recently, we “typically greet” assertions of “extravagant statutory power over the national economy” with “skepticism.” Utility Air, 573 U. S., at 324. The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of “clear congressional authorization,” ibid.—confirms that the approach under the major questions doctrine is distinct. 

These paragraphs seem to conflate positions (a) and (b) -- and perhaps even (c) -- above.   And the result is that it's hard to know when the major questions canon comes into play or how it is justified.