Supreme Court climate ruling ignites deregulatory challenges

Source: By Ellie Borst, E&E News • Posted: Wednesday, August 17, 2022

The Supreme Court, as photographed Sept. 2, 2021.

The Supreme Court, as photographed Sept. 2, 2021. Francis Chung/E&E News

Less than two months after the Supreme Court issued its blockbuster ruling that reined in EPA’s authority to regulate power plant emissions, West Virginia v. EPA is already being used to shape legal battles over federal oversight on a range of issues from nuclear waste storage to LGBTQ+ rights.

Courts have traditionally relied on precedent set in Chevron v. Natural Resources Defense Council, a 1984 decision that set rules on when judges should defer to agency expertise if Congress has used vague language in a statute. The rules, known as the Chevron doctrine, are highly deferential toward agencies.

But in West Virginia, the Supreme Court’s six-justice conservative majority took a different approach and relied on another long-standing legal theory, the “major questions” doctrine, which says that if Congress wanted to give sweeping authority to an administrative agency, it must state so clearly.

But the Supreme Court didn’t specify how or when a regulation may qualify as “major,” largely leaving such determinations to federal agencies and the lower courts.

The number of court filings citing the major questions doctrine since West Virginia was decided “illustrates the old adage that ‘when you have a hammer, everything looks like a nail,’” said Robert Percival, director of the University of Maryland’s environmental law program.

Despite Chief Justice John Roberts writing in the majority opinion that the doctrine should be reserved for “extraordinary cases” only, “so many industry lawyers think it applies to their cases,” Percival said in an email.

Even before it was decided, West Virginia was fueling a push by conservative groups to raise major questions challenges against some of the Biden administration’s biggest climate actions. But the Supreme Court’s June 30 ruling — which more fully defined, and some say transformed, the decades-old doctrine — has provided those groups more ammo in the legal battlefield (Greenwire, April 11).

“The Court has created a new hammer and now every lawyer thinks their case is a nail,” Percival said.

Jay Duffy, an attorney for the Clean Air Task Force, said he expected the ruling to be used as an “anti-regulatory hurdle.”

Duffy, who represented environmental and public health groups in West Virginia, said the decision is likely to have “a lot of repercussions for other agencies who are operating under these broadly worded statutes where Congress has expected them to use their expertise and technical know-how to deal with some of the most pressing problems facing the country.”

Under the Chevron doctrine — which has fallen out of favor in recent years with the conservative-dominated Supreme Court — judges largely defer to an agency’s expertise, leaving it to “come up with solutions tailored to the problem,” Duffy said.

“Now they are going to need to find specific authorization,” he said.

The conservative counterargument is that the major questions doctrine helps ensure a separation of powers between Congress and the executive branch — a buffer West Virginia Attorney General Patrick Morrisey (R) has vowed to protect.

“My office will continue to fight for the rights of West Virginians when those in Washington try to go too far in asserting broad powers without the people’s support,” Morrisey, the lead challenger in the Supreme Court case, said in a statement after the opinion was released (Greenwire, June 30).

Here are some of the legal battles playing out in courts across the nation that have cited the Supreme Court’s landmark climate ruling.

Abortion access

Texas has sued the Department of Health and Human Services over its guidance that permits abortions in emergency situations in all states.

HHS says emergency abortions are protected under the Emergency Medical Treatment and Active Labor Act, but Texas Attorney General Ken Paxton (R) argues that the department still lacks authority. The original complaint, filed July 14, invokes the major questions doctrine, but it doesn’t explicitly use the term.

It instead cites Roberts’ West Virginia opinion: “We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.”

Nuclear waste storage

In a supplemental brief last month to the 5th U.S. Circuit Court of Appeals, Paxton argued that the major questions doctrine applies to an ongoing challenge against the Nuclear Regulatory Commission’s authority to issue a license for a private facility to store radioactive waste in the Permian Basin (Energywire, July 8).

“In West Virginia, the Court explained that there are certain cases where ‘there may be reason to hesitate before accepting a reading of a statute that would, under more ordinary circumstances, be upheld,’” the supplemental brief said. “This happens when the ‘history and the breadth of the authority that the agency has asserted, and the economic and political significance of that assertion, provide a reason to hesitate before concluding that Congress meant to confer such authority.’”

But the attorneys on NRC’s side argued in a separate brief filed Aug. 3 that there are three reasons why West Virginia doesn’t apply.

First, they said there is no “newness” or lack of precedent in this case as there was in West Virginia. Second, NRC added, federal lawmakers had specifically rejected the rule at issue in West Virginia, and “Congress hadn’t said a word about curtailing that authority” for the nuclear case challenges.

Third, the agency concluded, EPA, unlike NRC in the nuclear lawsuit, had never regulated what was of the matter in the Supreme Court climate case.

LGBTQ+ issues

Over 20 states have joined litigation against the Department of Agriculture over a policy announced in May that would expand its definition of sexual discrimination to include sexual orientation and gender identity.

The complaint, filed July 26 in the U.S. District Court for the Eastern District of Tennessee, claims the guidance is illegal because the states were not consulted and Congress didn’t explicitly authorize it.

“Congress must ‘speak clearly when authorizing an agency to exercise powers of vast economic and political significance,’” the complaint said, citing West Virginia.

Ag rules

Sen. John Boozman (R-Ark.), ranking member on the Agriculture, Nutrition and Forestry Committee, last month sent a letter to USDA Secretary Tom Vilsack urging the department to review its regulatory actions in light of West Virginia.

“Although the decision concerned EPA, it will have significant implications for government-wide rulemaking efforts moving forward, including USDA,” Boozman said in the letter, dated July 19. “For example, the Department recently proposed rules that arguably carry substantial economic and political consequences, such as those concerning competition in the livestock and poultry industries.”

Boozman also pointed to the department’s climate change initiatives as practices that “may also implicate the major questions doctrine,” he wrote.

Auto car racing

A group of race car enthusiasts said EPA’s assertion that it is illegal to tamper with emissions controls on motor vehicles — even if they are used solely for competition — should be subject to the major questions doctrine (Climatewire, July 14).

The group argues EPA improperly changed the road rules “with a sleight of hand” in 2016.

EPA pushed back the following week with a filing in the U.S. Court of Appeals for the District of Columbia Circuit that says the group “tries to stretch the major-questions doctrine well past its breaking point by contending that it applies to this modest dispute” (Climatewire, July 20).

The D.C. Circuit last week scrapped the racing coalition’s challenge.

Immigration

In a July 5 letter to the 5th U.S. Circuit Court of Appeals, Texas Solicitor General Judd Stone used the major questions doctrine as an applicable challenge to the legality of Deferred Action for Childhood Arrivals, the Obama-era policy that provides some safeguards for people who were brought to the United States illegally as children.

The Department of Homeland Security “lacked authority to adopt DACA,” Stone said in the letter, citing West Virginia.

Stone added that DACA was an “extraordinary claim of agency power” that has no “clear congressional authorization.”

The government filed a response the same day, saying “DACA does not present questions of deep economic and political significance” and that “Congress has never rejected proposals to amend DHS’s authority to create the DACA policy.”

Workers’ rights and overtime pay

In perhaps the first legal opinion to cite West Virginia, the Arizona Supreme Court on July 8 sided with corrections officers in their battle to get overtime pay for the unpaid hours they put in to complete pre-shift security screenings.

The state argued that the 1947 Portal-to-Portal Act, which says employers are not required to pay employees for the time they spend on pre- or post-work activities, such as transportation, protects it from paying workers overtime.

The Arizona Supreme Court remanded the decision to a lower court and said the state does not have the authority to rely on the Portal-to-Portal Act to not pay employees because the state Legislature did not give it explicit authority to act.

“It is highly unlikely that the legislature would choose to bestow sweeping regulatory authority upon an agency in such an oblique and indirect fashion,” Justice Clint Bolick wrote in the opinion, citing West Virginia.

Reporter Lesley Clark contributed.