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Key Points:<\/h3>\n
<\/p>\n- For the first time, the Supreme Court has invoked explicitly
\nthe “major questions doctrine”\u2014which requires
\nCongress to speak clearly when authorizing agency action in certain
\nextraordinary cases\u2014to strike down an agency rule.<\/li>\n
\n
<\/p>\n
- The major questions doctrine is likely to apply in rulemakings
\nof vast economic and political significance, like major climate
\nchange regulation or other areas Congress arguably did not leave to
\nagency discretion, particularly where the agency action is novel or
\nwhere Congress has tried but failed to legislate in the same
\narea.<\/li>\n
\n
<\/p>\n
- The decision’s ramifications extend far beyond
\nenvironmental regulations, as the doctrine is likely to play an
\nimportant role in major rulemakings across the regulatory
\nlandscape, including international trade, tax, securities,
\nimmigration, and health.<\/li>\n
\n<\/ul>\n
Overview<\/h3>\n
The U.S. Supreme Court’s 6-3 decision in West Virginia
\nv. EPA<\/em> announcing the “major questions doctrine”
\nthreatens to limit agency authority in a narrow but exceptionally
\nsignificant band of administrative rulemakings\u2014i.e., the
\nbiggest, most innovative, and most consequential ones. This alert
\nfirst provides an overview of the doctrine, as elucidated by the
\nCourt. It then turns to the decision’s likely disruptive
\nconsequences, which are by no means limited to climate change
\nregulation and are likely to affect major administrative actions in
\nany number of fields\u2014international trade, tax, securities,
\nimmigration, and health, to name a few.<\/p>\nBackground<\/h3>\n
Decided on the final day of the Court’s term, West
\nVirginia v. EPA<\/em> “announces the arrival” (in the
\ndissent’s words) of the “major questions
\ndoctrine”\u2014a new substantive presumption that overrides
\nordinary statutory construction principles in certain
\n“extraordinary” cases. In a nutshell, the majority
\n(authored by Chief Justice Roberts, and joined by Justices Thomas,
\nAlito, Gorsuch, Kavanaugh, and Barrett) describes the doctrine as a
\n“reluctan[ce] to read into ambiguous statutory text” a
\ndelegation of broad agency authority\u2014even where such
\n“regulatory assertions ha[ve] a colorable textual basis.”
\nFounded on “both separation of powers principles and a
\npractical understanding of legislative intent,” the doctrine
\nthus requires Congress to legislate particularly clearly when
\nauthorizing an agency to make “decisions of vast economic and
\npolitical significance.” Although the Supreme Court had
\narguably applied a form of the “major questions doctrine”
\nin various cases over the years, it had never used that specific
\nphrase, nor had it fleshed out its contours in such detail until
\nnow.<\/p>\nApplication of the “major questions doctrine” is a
\ntwo-step inquiry: (i) does the case trigger the “major
\nquestions doctrine,” and, if so, (ii) can the agency point to
\n“clear congressional authorization” to regulate in the
\nproposed manner?<\/p>\n
As to the first inquiry, the opinion sets forth several
\n(apparently non-exhaustive) considerations to help decide whether a
\ncase implicates the “major questions doctrine”:<\/p>\n
<\/p>\n- Whether the agency discovered in a “long-extant statute an
\nunheralded power” that significantly expands or even
\n“transform[s]” its regulatory authority.<\/li>\n
\n
<\/p>\n
- Whether the agency’s claimed authority derives from an
\n“ancillary,” “gap-filler,” or otherwise
\n“rarely used” provision of the statute.<\/li>\n
\n
<\/p>\n
- Whether the agency adopted a regulatory program that Congress
\nhad “conspicuously and repeatedly declined to enact
\nitself.”<\/li>\n
\n<\/ul>\n
Justice Gorsuch’s concurrence, joined by Justice Alito, adds
\na few other “non-exclusive” factors:<\/p>\n
<\/p>\n- Whether the agency claims the power to resolve a matter of
\ngreat political significance.<\/li>\n
\n
<\/p>\n
- Whether the agency attempts to regulate “a significant
\nportion of the American economy” or require massive spending
\nby regulated parties.<\/li>\n
\n
<\/p>\n
- Whether the agency’s rulemaking seeks to “intrud[e]
\ninto an area that is the particular domain of state law.”<\/li>\n
\n<\/ul>\n
As to the second inquiry, the Supreme Court did not offer much
\nguidance on precisely how “clear” Congress must speak to
\npermit a rulemaking in a “major questions” case. But it
\nfound such a clear statement lacking in West Virginia v.
\nEPA<\/em> despite the textual plausibility of EPA’s assertion.
\nSpecifically, the Court held that language in Section 111(d) of the
\nClean Air Act authorizing EPA to devise the “best system of
\nemission reduction” did not permit EPA to “devise
\nemissions caps based on . . . generation shifting,” i.e.,
\nshifting generation away from existing coal-fired power plants by
\nrequiring them to “reduce their own production of electricity,
\nor subsidize increased generation by natural gas, wind, or solar
\nsources.” For such a measure to fall within EPA’s
\nauthority, the Court demanded a more-specific congressional
\nmandate. Thus, although the Court did not overturn
\nMassachusetts v. EPA<\/em>, 549 U.S. 497 (2007) or otherwise bar
\nthe agency from regulating greenhouse gases generally, it did place
\nreal limits on the type of regulations the agency can
\npromulgate.<\/p>\nImplications<\/h3>\n
The implications of this decision are far-reaching, both for
\nadministrative rulemakings (whether pending or new) and for
\nadministrative litigation in the federal courts. Regulated parties
\nwill undoubtedly invoke this case and the major questions doctrine
\nto argue against broad assertions of Executive Branch authority
\nduring the notice-and-comment process and, if unsuccessful, in
\nensuing court challenges under the Administrative Procedure
\nAct.<\/p>\n
To be sure, presumably only a small number of rulemakings will
\nfall within the “major questions” bucket. But those
\nrulemakings are, by definition, going to be “major”
\nones\u2014i.e., “extraordinary” matters implicating
\nbroad or “transformative” assertions of Executive Branch
\npower, great political significance or large sums of money.
\nMoreover, such cases will arise “from all corners of the
\nadministrative state,” not just from EPA. The opinion itself
\ncites the following historical examples:<\/p>\n
<\/p>\n- The U.S. Food and Drug Administration’s attempt to regulate
\nor ban tobacco products, see FDA v. Brown & Williamson
\nTobacco Corp.<\/em>, 529 U.S. 120 (2000).<\/li>\n
\n
<\/p>\n
- The Attorney General’s attempt to rescind licenses of
\nphysicians who assisted patient suicides, Gonzalez v.
\nOregon<\/em>, 549 U.S. 243 (2006).<\/li>\n
\n
<\/p>\n
- The Centers for Disease Control and Prevention’s attempt to
\nimpose an eviction moratorium in response to the COVID-19 pandemic,
\nAlabama Assn. of Relators v. Department of Health and Human
\nServs<\/em>, 594 U.S. __ (2021) (per curiam).<\/li>\n
\n
<\/p>\n
- The Occupational Safety and Health Administration’s attempt
\nto impose a vaccine or testing mandate, National Federation of
\nIndependent Business v. Occupational Safety and Health
\nAdministration<\/em>, 595 U.S. __ (2022) (per curiam).<\/li>\n
\n<\/ul>\n
And it is not hard to imagine the doctrine playing a significant
\nrole in other existing, pending or potential rulemakings, such
\nas:<\/p>\n
<\/p>\n- The U.S. Securities and Exchange Commission’s proposed rule
\nrequiring extensive greenhouse gas emissions data reporting among
\nthe extensive, granular climate disclosure requirements, see
\nEnhancement and Standardization of Climate-Related Disclosures
\nfor Investors<\/em>, 87 Fed. Reg. 21334 (April 11, 2022).<\/li>\n
\n
<\/p>\n
- Proposed FDA rules banning the manufacture and sale of menthol
\ncigarettes, see Tobacco Product Standard for Menthol in
\nCigarettes<\/em>, 87 Fed. Reg. 26454 (May 4, 2022).<\/li>\n
\n
<\/p>\n
- Potential rules protecting access to abortion rights in the
\nwake of Dobbs v. Jackson Women’s Health Organization<\/em>,
\n597 U.S. __ (2022).<\/li>\n
\n<\/ul>\n
Bottom line<\/h3>\n
Because arguments over the major questions doctrine will likely
\nplay a key role in major rulemakings\u2014both during the
\nnotice-and-comment process and in follow-on litigation\u2014it is
\nimportant for regulated businesses to become acquainted with the
\nscope of the doctrine. Akin Gump’s regulatory lawyers and
\nappellate litigators are available to help you understand the
\ndoctrine’s application to specific rules, how it might impact
\nyour existing or future regulatory burden, and potential litigation
\noptions.<\/p>\n
The content of this article is intended to provide a general
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n<\/div>\n\nPOPULAR ARTICLES ON: Corporate\/Commercial Law from United States<\/p>\n
\nthe “major questions doctrine”\u2014which requires
\nCongress to speak clearly when authorizing agency action in certain
\nextraordinary cases\u2014to strike down an agency rule.<\/li>\n
\n
<\/p>\n
\nof vast economic and political significance, like major climate
\nchange regulation or other areas Congress arguably did not leave to
\nagency discretion, particularly where the agency action is novel or
\nwhere Congress has tried but failed to legislate in the same
\narea.<\/li>\n
\n
<\/p>\n
\nenvironmental regulations, as the doctrine is likely to play an
\nimportant role in major rulemakings across the regulatory
\nlandscape, including international trade, tax, securities,
\nimmigration, and health.<\/li>\n
\n<\/ul>\n
Overview<\/h3>\n
The U.S. Supreme Court’s 6-3 decision in West Virginia
Decided on the final day of the Court’s term, West
Application of the “major questions doctrine” is a
As to the first inquiry, the opinion sets forth several
\n<\/ul>\n Justice Gorsuch’s concurrence, joined by Justice Alito, adds
\n<\/ul>\n As to the second inquiry, the Supreme Court did not offer much
The implications of this decision are far-reaching, both for
To be sure, presumably only a small number of rulemakings will
\n<\/ul>\n And it is not hard to imagine the doctrine playing a significant
\n<\/ul>\n Because arguments over the major questions doctrine will likely
The content of this article is intended to provide a general
POPULAR ARTICLES ON: Corporate\/Commercial Law from United States<\/p>\n
\nv. EPA<\/em> announcing the “major questions doctrine”
\nthreatens to limit agency authority in a narrow but exceptionally
\nsignificant band of administrative rulemakings\u2014i.e., the
\nbiggest, most innovative, and most consequential ones. This alert
\nfirst provides an overview of the doctrine, as elucidated by the
\nCourt. It then turns to the decision’s likely disruptive
\nconsequences, which are by no means limited to climate change
\nregulation and are likely to affect major administrative actions in
\nany number of fields\u2014international trade, tax, securities,
\nimmigration, and health, to name a few.<\/p>\nBackground<\/h3>\n
\nVirginia v. EPA<\/em> “announces the arrival” (in the
\ndissent’s words) of the “major questions
\ndoctrine”\u2014a new substantive presumption that overrides
\nordinary statutory construction principles in certain
\n“extraordinary” cases. In a nutshell, the majority
\n(authored by Chief Justice Roberts, and joined by Justices Thomas,
\nAlito, Gorsuch, Kavanaugh, and Barrett) describes the doctrine as a
\n“reluctan[ce] to read into ambiguous statutory text” a
\ndelegation of broad agency authority\u2014even where such
\n“regulatory assertions ha[ve] a colorable textual basis.”
\nFounded on “both separation of powers principles and a
\npractical understanding of legislative intent,” the doctrine
\nthus requires Congress to legislate particularly clearly when
\nauthorizing an agency to make “decisions of vast economic and
\npolitical significance.” Although the Supreme Court had
\narguably applied a form of the “major questions doctrine”
\nin various cases over the years, it had never used that specific
\nphrase, nor had it fleshed out its contours in such detail until
\nnow.<\/p>\n
\ntwo-step inquiry: (i) does the case trigger the “major
\nquestions doctrine,” and, if so, (ii) can the agency point to
\n“clear congressional authorization” to regulate in the
\nproposed manner?<\/p>\n
\n(apparently non-exhaustive) considerations to help decide whether a
\ncase implicates the “major questions doctrine”:<\/p>\n
<\/p>\n
\nunheralded power” that significantly expands or even
\n“transform[s]” its regulatory authority.<\/li>\n
\n
<\/p>\n
\n“ancillary,” “gap-filler,” or otherwise
\n“rarely used” provision of the statute.<\/li>\n
\n
<\/p>\n
\nhad “conspicuously and repeatedly declined to enact
\nitself.”<\/li>\n
\na few other “non-exclusive” factors:<\/p>\n
<\/p>\n
\ngreat political significance.<\/li>\n
\n
<\/p>\n
\nportion of the American economy” or require massive spending
\nby regulated parties.<\/li>\n
\n
<\/p>\n
\ninto an area that is the particular domain of state law.”<\/li>\n
\nguidance on precisely how “clear” Congress must speak to
\npermit a rulemaking in a “major questions” case. But it
\nfound such a clear statement lacking in West Virginia v.
\nEPA<\/em> despite the textual plausibility of EPA’s assertion.
\nSpecifically, the Court held that language in Section 111(d) of the
\nClean Air Act authorizing EPA to devise the “best system of
\nemission reduction” did not permit EPA to “devise
\nemissions caps based on . . . generation shifting,” i.e.,
\nshifting generation away from existing coal-fired power plants by
\nrequiring them to “reduce their own production of electricity,
\nor subsidize increased generation by natural gas, wind, or solar
\nsources.” For such a measure to fall within EPA’s
\nauthority, the Court demanded a more-specific congressional
\nmandate. Thus, although the Court did not overturn
\nMassachusetts v. EPA<\/em>, 549 U.S. 497 (2007) or otherwise bar
\nthe agency from regulating greenhouse gases generally, it did place
\nreal limits on the type of regulations the agency can
\npromulgate.<\/p>\nImplications<\/h3>\n
\nadministrative rulemakings (whether pending or new) and for
\nadministrative litigation in the federal courts. Regulated parties
\nwill undoubtedly invoke this case and the major questions doctrine
\nto argue against broad assertions of Executive Branch authority
\nduring the notice-and-comment process and, if unsuccessful, in
\nensuing court challenges under the Administrative Procedure
\nAct.<\/p>\n
\nfall within the “major questions” bucket. But those
\nrulemakings are, by definition, going to be “major”
\nones\u2014i.e., “extraordinary” matters implicating
\nbroad or “transformative” assertions of Executive Branch
\npower, great political significance or large sums of money.
\nMoreover, such cases will arise “from all corners of the
\nadministrative state,” not just from EPA. The opinion itself
\ncites the following historical examples:<\/p>\n
<\/p>\n
\nor ban tobacco products, see FDA v. Brown & Williamson
\nTobacco Corp.<\/em>, 529 U.S. 120 (2000).<\/li>\n
\n
<\/p>\n
\nphysicians who assisted patient suicides, Gonzalez v.
\nOregon<\/em>, 549 U.S. 243 (2006).<\/li>\n
\n
<\/p>\n
\nimpose an eviction moratorium in response to the COVID-19 pandemic,
\nAlabama Assn. of Relators v. Department of Health and Human
\nServs<\/em>, 594 U.S. __ (2021) (per curiam).<\/li>\n
\n
<\/p>\n
\nto impose a vaccine or testing mandate, National Federation of
\nIndependent Business v. Occupational Safety and Health
\nAdministration<\/em>, 595 U.S. __ (2022) (per curiam).<\/li>\n
\nrole in other existing, pending or potential rulemakings, such
\nas:<\/p>\n
<\/p>\n
\nrequiring extensive greenhouse gas emissions data reporting among
\nthe extensive, granular climate disclosure requirements, see
\nEnhancement and Standardization of Climate-Related Disclosures
\nfor Investors<\/em>, 87 Fed. Reg. 21334 (April 11, 2022).<\/li>\n
\n
<\/p>\n
\ncigarettes, see Tobacco Product Standard for Menthol in
\nCigarettes<\/em>, 87 Fed. Reg. 26454 (May 4, 2022).<\/li>\n
\n
<\/p>\n
\nwake of Dobbs v. Jackson Women’s Health Organization<\/em>,
\n597 U.S. __ (2022).<\/li>\nBottom line<\/h3>\n
\nplay a key role in major rulemakings\u2014both during the
\nnotice-and-comment process and in follow-on litigation\u2014it is
\nimportant for regulated businesses to become acquainted with the
\nscope of the doctrine. Akin Gump’s regulatory lawyers and
\nappellate litigators are available to help you understand the
\ndoctrine’s application to specific rules, how it might impact
\nyour existing or future regulatory burden, and potential litigation
\noptions.<\/p>\n
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n<\/div>\n