With West Virginia v. EPA, the Supreme Court is holding Congress accountable

July 07, 2022 | By PAIGE GILLIARD
Congress house chamber in session

After the Supreme Court announced its 6-3 ruling in West Virginia v. EPA, many accused the Court of “destroy[ing] environmental protections” (Vox) and “leav[ing] Biden with few tools to combat climate change (The New York Times).  

But as several PLF attorneys told the media this week, the West Virginia decision actually restores the power to make major environmental decisions to the legislative branch—where it belongs. 

At issue was whether the EPA had the authority under Section 111(d) of the Clean Air Act to cap emissions from power plants based on a “generation shifting” scheme The agency argued the Clean Air Act gives it broad authority to curb greenhouse gas emissions.  

In its decision, the Supreme Court invoked the “major questions doctrine,” which says Congress must explicitly give agencies authority to make major policy decisions. In this case, Congress didn’t clearly give the EPA emissions-capping authority over power plants through the Clean Air Act.  

Todd Gaziano, director of PLF’s Center for the Separation of Powers, explained the decision on CBN:  

“In other words, Congress, our legislature, our democratically accountable representatives have to make the major policy decisions for us unless they clearly delegate it to the agencies. The more important part of today’s decision is really who decides. So, who decides the major questions of economic and political significance in America? And the Court got it correct: It’s Congress.” 

He added: “”We have not outgrown the Constitution and especially the Constitution’s protection. It is our legislature that makes our laws and not unelected bureaucrats.” 

Gaziano also spoke with Politico, responding to criticism that the major questions doctrine is “amorphous.” 

“I sympathize with that concern, but the court usually decides these kinds of important matters in a case-by-case decision. But it is not a power grab for the court to properly decide that the original framework of our Constitution is still required… Congress has increasingly dodged its responsibility, and agencies have increasingly decided to try to engage in policy with the pen and the phone. This puts the pressure back on Congress.” 

PLF attorney Charles Yates also responded to the decision’s critics, saying on The Lars Larson Show: 

“There’s a lot of catastrophizing going on about this decision. It’s really important to remember that at bottom this case was not about climate change as a specific policy issue. It was about EPA, an agency, usurping the authority of Congress and using environmental regulations to make significant policy decisions and holding that that’s unacceptable. What really happened here is that the Supreme Court was simply reminding the EPA the Constitution’s checks and balances exist and specifically that the separation of powers between the legislative and executive branches is an important source of liberty in this country.” 

On The Drew Mariani Show, PLF attorney Frank Garrison focused on Justice Neil Gorsuch’s concurring opinion, which delved deeper into the major questions doctrine:  

“Justice Gorsuch lays this out well. He talks about how administrative agencies, the executive branch in general, might be able to fill in details of statutes but the big policy questions, and there’s no doubt that climate change is a big policy question, he’s not tipping the scales in any one policy direction, he’s just saying that when these big policy questions come about, it has to be Congress and the people’s elected representatives that make the call. And then administrative agencies can fill in details. So, as long as they’re not changing the law, that’s perfectly within the constitutional bounds.” 

What is the reach of this decision; what is the scope of this decision? 

“I think it will have an effect on other cases. One big result that I think may come from today’s opinion, especially when you combine what Chief Justice Roberts says in his majority and what Justice Gorsuch says in his concurrence, is they’re explicitly acknowledging the major questions doctrine now. I think there was some speculation that they were just applying this willy-nilly in different cases and it was just a rule of statutory construction. But I think that between those two opinions today, they make it clear that there is a clear statement rule that they’re going to apply when administrative agencies try to do big things and make big policy choices that run up against changing the statute. And I do think that is going to have some precedential effect. When agencies try and do really big things, I think they’re going to look at West Virginia v. EPA and have second thoughts.” 

As Garrison said, the West Virginia decision will have an effect on other cases—including current PLF cases. The Washington Post connected the West Virginia decision to Sackett v. EPA, which PLF senior attorney Damien Schiff will argue before the Supreme Court on October 3.  

Schiff spoke to The Post, drawing a parallel between how EPA overstepped its Clean Air Act authority in West Virginia and how it overstepped its Clean Water Act authority in Sackett. “Over the last 30 to 40 years, the Clean Water Act has developed into something much more than a basic water quality program,” Schiff said. “In practice, it has become something like a mini federal zoning code.”  

PLF attorney Caleb Kruckenberg also spoke with Law360 about the case of Duke Bradford, a Colorado adventure guide who is fighting an unconstitutional wage order from the Department of Labor. “As we indicated yesterday in our filing with the Tenth Circuit,” Kruckenberg told the outlet, the “decision in West Virginia v. EPA reaffirmed a critical limit on administrative action.” 

He continued: 

“As we have argued from the beginning, courts should be extremely leery when agencies suddenly discover the authority to enact broad social policies in the vague language of an ill-fitting statute. And the Court yesterday emphasized how this reluctance is an important aspect of the separation of powers, because it guarantees that agencies won’t improperly exercise lawmaking functions. These principles fit our case perfectly, as the president improperly ordered DOL to use a portion of the Procurement Act to enact a wage rule that doesn’t have anything to do with procurement. Congress has also consistently declined to impose wage rules for firms like our clients. This case is important for our clients, but it is also important for making sure that agencies like the DOL cannot take power away from the elected representatives in Congress.” 

That’s the bottom line: The executive branch cannot make laws; that power belongs to Congress. As Chief Justice John Roberts wrote in the West Virginia v. EPA majority opinion,  consequential policy decisions rest “with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” Agencies cannot seize the power to unilaterally make major decisions; Congress cannot delegate away its lawmaking responsibilities; and courts should not defer to agencies who overstep their authority.  

The separation of powers doctrine is the foundational architecture of our country’s government. And as Supreme Court Justice Louis Brandeis said, its purpose is “to save the people from autocracy.” 

Read more PLF commentary on West Virginia v. EPA: 

Law and Liberty: The legislature can still legislate by Todd Gaziano 

The Hill: The Supreme Court should rebuke the EPA’s unconstitutional lawmaking by Frank Garrison and Paige Gilliard