Republicans Seize the ‘Major Questions Doctrine’ to Block Biden’s Climate Agenda

Red states are mounting a pre-emptive strike against President Joe Biden’s climate agenda, arguing that climate change is, in essence, too big an issue for any president to tackle without explicit direction from Congress.

These Republican-led, mostly fossil fuel-producing states are invoking the “major questions doctrine,” a judicial principle that was seldom used until recently, but which has adherents among the Trump-appointed jurists who now are hearing the challenges to Biden’s authority.

West Virginia will be arguing on behalf of 20 states and the coal industry before the Supreme Court Monday. They will argue that the Environmental Protection Agency should stop regulating greenhouse gases from power plants under major questions doctrine. The case is unusual because the Biden EPA hasn’t proposed any such regulations yet. Even power plant operators say West Virginia and its colitigants have gone too far. They will support the Biden administration.

But the case has been crafted to appeal especially to “major questions” proponents like Associate Justices Neil Gorsuch and Brett Kavanaugh. And the fact that the Supreme Court agreed to hear it at such an early stage signals some openness to the argument that EPA regulation of power plants under the Clean Air Act would constitute “an enormous and transformative expansion [of its] regulatory authority” without Congress’ say-so.

Meanwhile, in a “major questions” case brought by Louisiana, a Trump-appointed federal judge has thrown a roadblock in the way of a vast array of Biden initiatives on climate, including EPA rules and other decisions, and even the State Department’s negotiations with Canada and other nations to harmonize international action on climate. 

In a court filing last week, the Justice Department indicated that a staggering amount of federal government activity is on hold in the wake of U.S. Judge James Cain’s Feb. 11 injunction against the use of the Biden administration’s “social cost of carbon” calculation, a method for accounting for the cost of greenhouse gas emissions.  The Justice Department, seeking a stay of the order, wrote that it was “aware of no precedent for such judicial micromanagement of Executive Branch policymaking.”

The red states’ legal strategy, if effective, will put Biden in a double bind, preventing him from acting on climate without explicit instructions from Congress—a Congress that happens to be in an intractable deadlock over climate. The ramifications could go far beyond climate. Industry and state regulators will have a new avenue to challenge any major federal rule, arguing that it is not in line with what Congress intended.

Already, a small business coalition succeeded in persuading the Supreme Court to block the Biden administration’s workplace Covid vaccine mandate using the same legal doctrine.

“They’re not just trying to undermine EPA’s authority to address climate pollution from existing coal plants,” said Vickie Patton, general counsel of the Environmental Defense Fund. “They are trying to damage other important programs and agencies that are designed to protect Americans from all sorts of harm, including that we have food that is safe to eat, water that’s safe to drink, and air that is safe to breathe.

“The safeguards that save lives are really under threat from the legal questions that the coal industry has put before the Supreme Court,” Patton said.

The red states would also agree that they seek to have broad impact. “I think this case is really important,” West Virginia Attorney General Patrick Morrissey said last week in an appearance at the National Press Club. “You get to set better guideposts in terms of how federal agencies are going to act based upon a principle that when you have a major question of the day, you better get it right, both for purposes of not intruding not only on Congressional authority, but on the states’ authority.”

Before Climate, Cigarettes, and Smokeless Tobacco

Legal doctrines, sometimes called “judge-made rules,” are simply the standards that courts develop over time to reason their decisions, and hopefully apply them with some consistency. The battle in the courts over how much federal agencies should have to interpret the law resulted into the major questions doctrine. This is especially true as the government has been forced by society to address ever more complex issues without Congress’ intervention.

To rein in the Biden administration on climate, the red states are hearkening back to the Supreme Court’s reasoning in its 2000 decision blocking a bid by the Clinton administration’s Food and Drug Administration to regulate cigarettes and smokeless tobacco. The FDA said cigarettes were “drug-delivery systems” within the broad regulatory mandate Congress gave the agency under the Food, Drug, and Cosmetic Act. But Justice Sandra Day O’Connor, writing for a  5-4 court, disagreed, articulating what has come to be known as the major questions doctrine. “We are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion,” she wrote.

Ironically, O’Connor laid out the “major questions” approach drawing in part on past legal writing by her colleague on the court, Justice Stephen Breyer—who vociferously disagreed with her decision on the FDA and tobacco. In his dissenting opinion, Breyer argued that the court could not interpret Congress’ silence on the mounting evidence of tobacco and nicotine harms as a mandate for government inaction. Breyer said that FDA law gave the government the authority to act. This was far from an undemocratic exercise, as the tobacco industries portrayed it. It was a decision for, which the voters would hold the administration accountable. “Presidents, just like Members of Congress, are elected by the public,” Breyer wrote. “Indeed, the President and Vice President are the only public officials whom the entire Nation elects.”

The fact that O’Connor and Breyer could come to opposite conclusions in the close FDA tobacco case shows how subjective the major questions doctrine can be, and how difficult it is to apply consistently, in the view of many legal scholars. “A ‘major question,’ after all, is in the eye of the beholder,” wrote lawyers for the Obama administration Federal Communications Commission in a 2011 law review article.

In fact, litigants rarely used the major questions doctrine in the years that followed the FDA case. The so-called “The Most Important Doctrine” has been the best governing federal agency authority cases for many years. Chevron doctrine. In a 1984 case involving the oil company, the Supreme Court said that when Congress had not spoken directly to the precise issue in question, judges should give deference to federal agencies as long as their interpretation of the law was “reasonable.”

Federal regulation opponents have lashed out at the deference shown agency under the Chevron doctrine for years, and discarding it has been a cause célèbre for the Federalist Society, a group of right-wing legal scholars that have been devoted to remaking the federal courts as a conservative stronghold. Donald Trump relied almost exclusively on Federalist Society-endorsed nominees for the 229 federal court appointments he made during his term. This includes the three Supreme Court judges he named.

Trump-appointed jurists have made it clear that their preference is to give federal agencies less control by invoking the major question doctrine.  Trump’s first Supreme Court pick, Gorsuch—whose mother served as the deregulation-focused administrator of a scandal-ridden EPA under President Ronald Reagan—once wrote that the Chevron standard “certainly seems to have added prodigious new powers to an already titanic administrative state.”

And Gorsuch had a chance to articulate why he thinks the major questions doctrine is a more appropriate standard to apply to agencies in the court’s January decision striking down the Biden administration’s workplace vaccine mandate. In a separate concurring opinion, joined by Justices Samuel Alito and Clarence Thomas, Gorsuch wrote that the major questions doctrine “ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives.” 

Kavanaugh, Trump’s second Supreme Court pick, showed his willingness to apply the major questions doctrine specifically to EPA’s authority to regulate greenhouse gases when he was on the federal appeals court for the D.C. Circuit. During oral arguments over Obama’s now-defunct Clean Power Plan, Kavanaugh remarked as he grilled the lawyers: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance,” he said.

But no final court decision ever was made on Obama’s Clean Power Plan, which was repealed by Trump. Now, West Virginia and the coal industry are asking the Supreme Court court to weigh in on the major questions doctrine argument before Biden’s EPA has a chance to write its own regulations curbing carbon emissions from power plants.

Massachusetts vs. EPA

Even those who are close to climate policy may not be aware that the Supreme Court is resolving the issue of EPA regulation greenhouse gas emissions is before them again. This Court ruled in force in its landmark 2007 decision.Massachusetts vs. EPAEPA is required to regulate greenhouse gases if it determines they pose a threat to public health or welfare. This 2009 finding by the Obama EPA is still valid.

West Virginia and the coal industry have not challenged this finding and are not seeking to overturn it. Massachusetts vs. EPAMorrissey said this last week in his appearance before the press club.

“We have conceded that they do have a limited authority to regulate,” said Morrissey.  He stated that the case is not about. WhicheverThe EPA can regulate power stations, but how. In essence, the red states and coal industry argue the Clean Air Act doesn’t give the EPA authority to make the kind of system-wide cuts that would lead to large carbon emissions reductions from the power sector.

“We’ve put all of our energy on a basic premise,” said Morrissey. “If there’s a major question of the day, regardless of where you stand on the issue of climate change or the vaccine mandate, or whatever the issue may be, don’t you think that Congress needs to provide a clear statement to the agency before it acts? That’s what the case is all about.”

But the Biden EPA, supported by environmentalists and public health groups, 23 states, eight cities, a wide array of U.S. businesses, from the tech sector to the power sector, argue that West Virginia’s case doesn’t even belong in court, because there is no power plant regulation in place to rule on. The only thing that the Supreme Court could do at this stage is to issue an advisory opinion—telling the EPA in advance what it can and can’t do. And the Supreme Court has taken the position since the days of Thomas Jefferson (who unsuccessfully sought advisory opinions from the high court) that advisory opinions—although part of jurisprudence in England’s common law—were not permitted under the U.S. Constitution.

“This has been clear, literally since the beginning of the Republic,” said Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law. And Revesz said Morrissey’s remarks that West Virginia is looking for “guideposts” from the court show clearly that he is asking the court for an advisory opinion. 

Revesz has argued that the Supreme Court should do what it has done in roughly two cases every term, dismiss the case as “improvidently granted.”  Along the same lines, the court could conclude that West Virginia and the other litigants lack standing to sue, which the high court has done in some cases even after hearing oral arguments.

Consolidated Edison, Exelon, Pacific Gas & Electric, and other power companies with customers in 49 states—all companies that have already made investments in clean energy— will share oral argument time in support of the Biden EPA. In their brief, the companies said the Court should reject the request by West Virginia and the other states for an advisory opinion “about whether speculative abuses of power by an imagined future EPA Administrator would fall within the powers Congress lawfully granted to the agency.”

Environmental advocates fear that if the Supreme Court rules in favor of West Virginia it will signal the beginning of a new era in judicial skepticism about the role of federal agencies within American life. Some believe it will be a return to pre-New Deal times, when the Supreme Court was known for its resistance to progressive reforms.

“The ability of the federal government and even state and local governments to regulate the economy to provide for public health and safety was really limited,” said Andres Restrepo, senior attorney with the Sierra Club. The court of that time “took a maximally expansive view of economic liberty and the ability of companies and corporations to pretty much do things as they saw fit.”

Although the court initially rejected many of the President Franklin Delano Roosevelt programs, it was during Roosevelt’s era that jurisprudence evolved. Federal agencies played an important role in the recovery from Great Depression. Since that time, said Restrepo, “There was this understanding that the federal government needs to have the tools to be able to carry out laws that Congress passes, in a way that responds to changing circumstances, and deals with problems as they come up.”

Carbon’s social cost

Federal climate regulation is being challenged by opponents in cases that are far more complicated than the case of the power plants. The Biden administration’s accounting method to evaluate the potential benefits and costs of its climate decision-making was challenged in a major ruling this month. 

Early in his presidency, Biden’s White House directed  federal agencies to use a figure of about $52 per ton of carbon to reflect the societal costs of greenhouse gas pollution. The move was based upon work by the National Academies of Science as well as others. The administration can use a dollar value to carbon to determine whether the cost of cutting carbon emissions is worth it in terms of lives saved and better health, preservation and protection of coasts and forests, agricultural productivity, and property.

Louisiana led 10 other states in filing suit to block use of the Biden administration’s social cost of carbon calculation, arguing it “will remake our federalism balance of power, American life, and the American economy” and “will ensure the most pervasive regulation in American history.” 

The Louisiana case is unusual because the social cost carbon is not a regulation but a tool that can be used in regulation. The Administrative Procedure Act is the law that governs federal agencies. It states that legal challenges are only allowed after regulations are finalized. The Biden policy on the use of the carbon social cost did not constitute an agency action. A federal judge rejected a similar suit filed by Missouri and 11 states last August.

Cain, however, who was a Louisiana trial lawyer before being elevated to the federal bench by Trump, was won over by Louisiana’s “major questions” argument in one of the first cases he has handled on federal agency power. “The President lacks power to promulgate fundamentally transformative legislative rules in areas of vast political, social, and economic importance,” Cain wrote, concluding that Biden’s executive order on the social cost of carbon “violates the major questions doctrine.”

Cain issued an unusually broad Injunction, which has prevented the EPA, Energy and Interior departments and other agencies from working on dozens of federal regulations involving global warming. The EPA, for example, in addition to its work on new standards for power plants, has for weeks had a major pending proposal on heavy-duty vehicles under review at the White House—the final stage before publication.

The Justice Department, in its request for a stay of the injunction, said that Cain’s order had even affected foreign policy. The government’s technical experts “have ceased communication with their counterparts in Canada” on the effort the two nations have to align their estimates on the social cost of carbon. According to the legal brief, the United States could be excluded from multilateral discussions like those of the Asian Development Bank.

Cain requested that all parties to the case submit briefs in the next week on whether Cain’s order should be stayed. The Biden administration is not alone in arguing Cain’s order was out of line. Even conservative legal scholar Jonathan Adler, who is a proponent of use of the major questions doctrine, wrote in a column last week that Cain’s ruling was “wrong many times over and made a mess of relevant law.”

Max Sarinsky, a senior attorney at the Institute for Policy Integrity at NYU School of Law, thinks Cain’s injunction may not be in place long enough to have a lasting effect on Biden’s climate policy. 

“Given the extreme constitutional deficiencies with this opinion, I think the case will receive very close scrutiny on appeal,” Sarinsky said. Sarinsky believes that even if the injunction is upheld, it will not stop climate action. 

“This ruling certainly doesn’t upset all of the case law that federal agencies consider when they are weighing climate action,” he said. “If it were to be upheld, agencies would need to find other ways to meaningfully account for climate impacts without using these numbers, which have been widely credited with being among the best ways to account for those impacts.”

The red state cases are a good example of how conservative legal thinking has changed. Those who followed the lead of the late Supreme Court Justice Antonin Scalia described their philosophy as advocating judicial control. But supporters of the fossil fuel status quo in the West Virginia and Louisiana cases are seeking at least some judicial activism—as long as it is directed at restraining climate action by the Biden administration.