The Supreme Court’s decision in West Virginia v. Environmental Protection Agency will have significant implications for new policies, especially health policies, adopted by federal administrative agencies. Citing the so-called “major questions” doctrine that was used to invalidate several key health policies over the past year, the Court limited the EPA’s ability to combat climate change. West Virginia will likely be used to challenge other federal policies and limit Congress’s ability to rely on federal agencies to implement bold, forward-looking agendas.

Brief Background

At issue in West Virginia was whether the EPA’s adoption of the Clean Power Plan (CPP) was a permissible exercise of authority under the Clean Air Act (CAA). Enacted in 1970, the CAA authorizes the EPA to identify sources that significantly contribute to air pollution and set guidelines for achieving the “best system of emission reduction” that the EPA “determines has been adequately demonstrated.” Following those guidelines, the EPA adopted the CPP to reduce greenhouse gas emissions from existing power plants. The CPP included options to shift power generation from higher emission sources (such as coal) to lower emission sources (such as wind). By 2030, the CPP was expected to reduce 2005 emissions levels by 32 percent.

Republican attorneys general and some energy industry players challenged the CPP, claiming that the EPA exceeded its authority under the CAA. Specifically, they argued that the CPP violated the “major questions” doctrine because Congress had not explicitly authorized generation shifting. Additional background information on the major questions doctrine can be found in our report, “Slouching Towards Deregulation.”

The CPP never went into effect, and its emissions goals had already been achieved by the time West Virginia reached the Supreme Court. Given these developments, the government urged the Court not to decide the case, arguing that the plaintiffs were not harmed by the absence of a rule.

The Court’s Decision

Chief Justice John Roberts — writing for a 6-3 majority — concluded that the CPP was an “extraordinary case” that raised a “major question” such that the EPA must have clear authorization from Congress to adopt such a policy. Even though the CAA’s text grants the EPA broad authority to adopt a “system” for emission reduction, this statutory language was not clear enough for the Court.

What is an “extraordinary case” or “major question”? It remains unclear. In West Virginia, the Chief Justice laid out two open-ended benchmarks: (1) the history and the breadth of EPA’s asserted authority; and (2) the economic and political significance of the CPP. He reasoned that in the history of the CAA, a rule incentivizing generation shifting — an industry-wide measure — rather than a rule limited to individual power plants was unprecedented. And Congress had previously rejected similar generation shifting programs. Further, the CPP was economically and politically significant because it required the EPA to balance various national policy considerations, such as the cost of energy and effective electricity transmission. According to the Chief Justice, because the EPA did not have the expertise to balance all those considerations, Congress could not have intended to grant the EPA such power.

The Court then concluded that the EPA did not have sufficiently clear statutory authority to adopt this major regulatory policy. The Chief Justice downplayed the clarity of the CAA statute that the EPA had relied on to adopt the CPP, characterizing it as vague, rarely used, “ancillary,” and a “gap filler.” Although the CAA authorizes the EPA to establish the “best system” for emission reduction, the term “system” did not satisfy the Court’s new requirement for clear congressional authorization.

Justice Gorsuch, joined only by Justice Alito, wrote a concurring opinion articulating an even broader view of the major questions doctrine. He also laid out his view of how courts should identify a major questions case and decide whether Congress provided appropriate authorization.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. She argued that the Court’s decision defied what Congress wrote and departed from precedent. Congress deliberately gave the EPA broad authority to adopt the best system for emission reduction, and she argued that the broad term “system” encompasses generation shifting. It is typical for Congress to use broad language when it delegates power. But, as Justice Kagan pointed out, the majority opinion conflated “broad” with “vague,” thus enabling the Court to second-guess Congress and undercut Congress’s deliberate choice to give the EPA sufficient latitude to reduce emissions.

The dissent also criticized the Court for extending the major questions doctrine beyond the class of cases in which that doctrine had been historically applied — i.e., when the exercise of authority did not fit with the agency’s expertise and fell outside the statutory scheme. This includes older cases where the Court invalidated the FDA’s attempt to regulate tobacco products as a drug or device and newer cases such as the CDC’s eviction moratorium and OSHA’s vaccine-or-test requirement. Unlike these cases, the dissent pointed out, regulating greenhouse emissions from power plants is squarely within EPA’s wheelhouse.

Implications for Health Policy

West Virginia will significantly constrain the ability of federal agencies to implement robust, forward-looking policies. The Court severely handcuffed the EPA’s ability to combat climate change while also appointing itself as the final decision-maker on federal climate policy. The implications of the Court’s ruling go beyond the EPA’s authority and are expected to extend to new health policies.

The Court adopted an amorphous standard that makes it harder for agencies and Congress to understand the scope of permissible delegation to federal agencies. This uncertainty is bound to have a significant chilling effect on agencies, which routinely rely on broad delegations of authority to keep up with ever-changing circumstances. Instead of providing clear standards for determining what falls within the “extraordinary case” or “major questions” category, the Court adopted an “I’ll-know-it-when-I-see-it approach” — making the Court the ultimate decision-maker on these questions. This articulation of the major questions doctrine is expected to make it easier for unelected judges to question the wisdom of policy choices made by Congress and experts within the politically accountable executive branch. The decision will further embolden anti-regulation litigants and lower courts that have already been using the major questions doctrine to stymie commonsense regulations, especially in the health policy arena.

The Court’s decision in West Virginia is especially important for laws that address health policy because Congress often delegates authority to agencies using broad language to ensure that expert agencies can adopt innovative, evidence-based policies in response to changing times and circumstances. As Justice Kagan noted, “Congress knows what it doesn’t and can’t know when it drafts a statute,” so its gives expert agencies broad authority to “respond, appropriately and commensurately, to new and big problems.” Such delegation is central to health policy — an ever-changing field — because it gives agencies much-needed flexibility to leverage their expertise and nimbly respond to new complex, unanticipated issues. The Court’s decision in West Virginia puts such delegation in limbo. The use of West Virginia to try to invalidate federal health policies is an issue to watch going forward.