Apocalypse not: What West Virginia v. EPA really means

July 15, 2022 | By JAMES BURLING
Separation of Powers

On July 5, Axios not-so-subtly warned us that “the Supreme Court’s next target is the executive branch.” The Guardian’s headline was even more stark: “The U.S. Supreme Court has declared war on the Earth’s future.”  

With headlines like these, you might think we’re experiencing the end times. Or, as Imagine Dragons put it in their hit Radioactive: “I’m waking up to ash and dust… This is it, the apocalypse. Whoa.” Mad Max is knocking at the door, and the Supreme Court just let him in. Whoa indeed.  

These headlines were a reaction to the Court’s decision in West Virginia v. EPA, in which West Virginia and others sued over the EPA’s so-called Clean Coal Plan. The EPA described its plan euphemistically in terms of “‘generation shifting from higher-emitting to lower-emitting’ producers of electricity.” In other words, the EPA’s plan was to tighten the screws on coal plants so they would all go out of business, enabling us to live in an alternative-energy utopia. But this utopia would have costs. 

As the Court pointed out, the EPA itself “projected that the rule would impose billions in compliance costs, raise retail electricity prices, require the retirement of dozens of coal plants, and eliminate tens of thousands of jobs.” And that, the EPA thought, would be a good thing. 

The coal companies and states that are reliant on a coal economy thought otherwise. Where, they asked, did the EPA get the authority to inflict such pain in order to reduce carbon emissions?  

What the headline writers and end-of-the-world pundits miss is that the Supreme Court never opined whether shutting down the coal industry was a bad idea, a good idea, or none of the above. The Court addressed only one question: Who gets to decide to regulate the coal economy: Congress or the EPA? 

Some might ask, Why does that matter? Who cares if Congress or the EPA gets to lay waste to the carbon economy, as long as it gets done? Just like an oversized statue of a deposed dictator, isn’t it imperative that King Coal is pulled off his pedestal and ground into the dirt forever? 

To answer that question, it’s helpful to go back to a time long before today’s headline writers were born —a time when people began to stir and rise up against the rule of tyrants. Starting in the late 17th century, the philosophers of the Enlightenment began to question such things as the divine right of kings and whether government should serve the people, rather than the other way around. Such radical ideas eventually led to the American Revolution and the reign of liberty over tyranny.  

The American Revolution vested the nation’s newfound power, not in kings, governors, or even the president and his minions—but in the people. The people—through their elected representatives—would determine the laws that bind them. As Justice Neil Gorsuch explained in his concurring opinion in West Virginia, “the framers [of the Constitution] believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’”  

But how to protect liberty from the legislature? After the Revolution, the founders noted a disturbing trend of some state legislatures compromising the liberties of their citizens. When the drafters of the Constitution gathered in Philadelphia, they pondered how best to prevent the federal government from doing the same. 

They concluded that the new government had to follow a key insight of an early 18th-century Enlightenment philosopher, Baron de Montesquieu—that for liberty to flourish there must be a separation of the power to make laws from the powers to enforce and judge those laws.  

In 1788, James Madison explained the structure of the new Constitution in Federalist Paper No. 47, where he warned that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many…  may justly be pronounced the very definition of tyranny.” He continued by quoting directly from Montesquieu: “‘There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates’ or, ‘if the power of judging be not separated from the legislative and executive powers.’” 

And that brings us directly to the primary question of West Virginia v. EPA: Did Congress pass a statute that gave the president’s EPA the power to shut down the coal industry? Or was the EPA making this up, essentially creating its own law and then enforcing that law? Was it relying on a statutory directive or its own sense of mission—since there is a serious problem, the EPA must fix that problem, even if Congress hasn’t clearly told the EPA what to do? 

The Clean Coal Plan was not a case of ordinary delegation—where Congress passes a broad law and tells an agency to fill in the details. Sometimes, lawyers argue that under the “nondelegation doctrine,” Congress must be reasonably specific and provide an agency with “an intelligible principle” to follow in drafting regulations to enforce a somewhat-vague congressional directive. With the rise of the administrative state, the courts have almost never found a congressional delegation that was too broad or vague. But this case is different.  

The EPA’s attempt to shut down the coal industry was different because of its scope and magnitude. These regulations would have a huge impact—which is why the Court invoked the “major questions doctrine.” The Court explained, “Extraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or subtle devices.’” Because these coal regulations threatened to take out a large swath of the American economy, the Court found that ordinary principles of delegation—where agencies get to fill in the blanks of modest, vague, or subtle laws—were not relevant.  

Instead, the Court held that under these extraordinary circumstances, Congress has to unequivocally give the agency the power through “clear congressional authorization.” Reading the Clean Air Act, the Court found that it nowhere authorized the Clean Coal Plan. There was simply no language anywhere in the law that gives the EPA the power to do what it did. In fact, the Court noted, Congress has specifically rejected other proposals to regulate carbon emissions.  

Just because something is a really good idea doesn’t mean the executive branch can make it happen. unless Congress gives it the power to act.  

The critics who attack the Court for using its power to destroy the planet are wrong: The Court exercised no power of regulation itself. It arrogated unto itself zero power. It simply made more plain the dividing line between the power of Congress and the power of the president’s agencies. The EPA took power it didn’t have. The Court gave that power back to Congress. Now, it’s up to Congress to decide what, if anything, to do with that power. 

It is frustrating to many that Congress often acts slowly, or not at all, when the nation faces a crisis. But, as Justice Gorsuch pointed out, that’s a feature of democracy, not a bug. As Justice Gorsuch relates, James Madison in Federalist No. 10 expounded on the virtues of the deliberateness of the legislative process: “By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from it by an array of different perspectives during their consideration, and thanks to all this prove stable over time.” It’s hard to pass laws. And it should be hard. The consequences of hastily enacted bad laws can be devastating. Sometimes it’s better to wait to get things right.  

For too many years, federal agencies have used vague laws like a conjurer’s bag of tricks. If an agency wants to regulate something new, it just reaches into its bag of imprecise congressional statutes and pulls one out, declaring, “Abracadabra, Congress told us to go out and do good things, and now we have a whole new industry we can control!” To little avail, critics have decried the habit of the courts to defer to agencies whenever they make up whole new regulatory regimes based on ambiguous statutes.  

That in turn has inculcated a spirit of laziness in Congress. Rather than doing the hard work of passing laws with enough detail for people to understand what a law says, and rather than taking the time to ponder fully the consequences of a new law, Congress has adopted a habit of passing vague laws and leaving it to the agencies to fill in the blanks. When an agency goes too far in carrying out an imprecise command, or not far enough, Congress simply evades responsibility and blames the agency, refusing to admit the problem is of its own making.  

The vitality of the major questions doctrine may well instill more discipline into Congress. If it wants a problem fixed, Congress can pass a law that not only tells an agency what to fix, but how to fix it. Of course, agencies can still fill in the small details, but Congress can no longer rely on agencies making stuff up out of whole cloth. At least, not for really big rules that call the “major questions doctrine” into play. Perhaps the Court will next look more carefully at the nondelegation doctrine as it applies to less-than-major rulemaking. That, combined with limiting judicial deference to agency interpretations of vague laws, could go a long way to restoring the balance extolled by Madison and Montesquieu.  

West Virginia v. EPA doesn’t spell the end of the earth as we know it. But it may signal the beginning of the end of the idea that administrative agencies have free reign over the American economy without more guidance from Congress.