by Noah Feldman
Liberals are understandably delighted that Congress has managed to repudiate the outcome of at least one major case the Supreme Court decided in June. Although it seems certain that no federal legislation will be passed to try to reinstate Roe v. Wade and abortion rights, the Democratic congressional majority has made a clear statement on environmental law in the case of West Virginia v. EPA.
In the court’s 6-3 decision, the conservative majority blocked climate regulation issued by the Environmental Protection Agency on the theory that Congress hadn’t made it crystal clear in the 1970 Clean Air Act that the agency had authority to make the national power system more climate-friendly. Now, as part of the blockbuster Inflation Reduction Act passed earlier this month, Congress has stipulated that the Clean Air Act does in fact extend to greenhouse gases.
This legislative provision can’t reinstate the Barack Obama-era EPA regulation the justices struck down. The Supreme Court’s decision is binding with respect to what the Clean Air Act meant before it was amended by Congress earlier this month. And under administrative law, an agency that has been found to have acted unlawfully has to go back to the drawing board and issue a new rule under the new authorization.
The EPA will have to do that, but such regulation will now be on very firm legal footing. Even the current Supreme Court won’t be able to strike it down using the same logic it did in the West Virginia case. Although the conservative justices are perfectly capable of cooking up a new theory to block future regulation, it would take a lot of legal creativity to do so now that Congress has spoken.
But what are we to make of this repudiation by Congress of the Supreme Court? It’s a classic good news-bad news dichotomy.
The good news is that, in some roundabout way, the system of administrative law as it is currently configured worked. Most theorists of administrative law think that judicial decisions, laws and regulations taken together form an ongoing conversation among the courts, Congress and the administrative agencies. When one of the three speaks, the others have the opportunity to respond.
According to this arrangement, in the West Virginia case the court was telling the EPA that, without further action by Congress, it couldn’t change the overall power system to advance climate interests. In effect, the justices were also telling Congress that if it disagreed, it should pass a law saying so.
In the Inflation Reduction Act, the Democratic majority replied to the court. Now the court must listen. Because Congress is supposed to have the last word on matters of legislation, the new law marks a victory for the legislative branch — the way things are supposed to be, according to the textbooks.
The bad news is that the system almost failed — and that the justices bent over backward to try to make it fail. Under the law as it existed before the West Virginia case, the Supreme Court should have deferred to the EPA’s interpretation of the Clean Air Act. That is the principle of administrative law encompassed in the famous Chevron case.
Under Chevron’s logic, when Congress delegates authority under a broad statute like the Clean Air Act, it also implicitly delegates to the agency the power to interpret ambiguous provisions of the statute. If it was unclear whether the Clean Air Act allowed the EPA to regulate greenhouse gases as it did, then the agency’s determination that it possessed the authority should have controlled the outcome.
In the West Virginia case, however, the justices sidelined the Chevron principle. They endorsed for the first time a new principle called the “major questions doctrine.” In essence, this says that if the courts think that the agency is making a major policy decision where the statute is ambiguous, the courts should nor defer to the agency, as they would under the Chevron doctrine. Rather, the court should reject the regulation and insist that Congress express its will.
If you were to ask Chief Justice John Roberts, who wrote the West Virginia opinion, about Congress’s response in the Inflation Reduction Act, he would say that it was perfectly consistent with the major-questions doctrine. As he made clear in the opinion, he believes it should be up to Congress, not the agency, to decide important policy questions. That Congress has now done so is proof, he would say, that he and the other justices in the majority were right to block the regulation.
The Chevron doctrine was based on the idea that agencies like the EPA possess a special expertise that enables them to make good policy judgments. The major-questions doctrine ignores that expertise on any subject the court deems to be of importance.
And if relying on expertise sounds old-fashioned, consider that the Chevron doctrine is also sensitive to changes in the elected administration. Because the Chevron doctrine commands deference to the agency’s view, it correspondingly commands deference to whoever won the presidential election.
Roberts would surely reply that Congress, not the executive branch, makes the laws. In the real world, though, especially a real world characterized by a dysfunctional Congress, legislation can be very difficult to pass. The major-questions doctrine both disrespects agency expertise and interferes with presidential action on important issues.
We’re fortunate Congress managed to act this time on climate regulation. When it comes to other arrogations of judicial authority, we’re not going to be so lucky.
