Supreme Court Adopts Major Questions Doctrine in Striking Down EPA Rule

The Supreme Court recently struck down an Obama-era rule promulgated by the EPA under the Clean Air Act (CAA), invoking the “major questions doctrine” and finding the agency’s statutory interpretation could not be supported by “clear congressional authorization.”   

In an effort to regulate power plant emissions, the EPA promulgated the Clean Power Plan (CPP) in 2015, citing a little-used provision in the CAA for authority.  The rule was challenged and stayed by the Court in 2016, and the Trump administration repealed and replaced the rule in 2019, claiming that the CPP represented an overly broad reading of the CAA and exceeded the authority provided to the EPA by Congress.  Later, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated the CPP’s repeal and the Trump-era replacement rule, but agreed to stay its decision to vacate the repeal of the CPP.

As a threshold matter, the Supreme Court found that the states challenging the CPP had proper standing to do so—despite the rule’s repealed status and the EPA’s stated intention to not enforce the CPP—because the states had suffered a redressable injury as a result of the D.C. Circuit’s judgment below.  Furthermore, the Court reasoned that, because the EPA’s declination to enforce the CPP amounted to “voluntary conduct” without a guarantee that the rule’s substance would not be reimposed later, the case should not be dismissed as moot.

In finding the EPA exceeded its congressional authority to promulgate the CPP, the Court looked to a body of precedent for the proposition that, in “extraordinary cases” marked by their “economic and political significance,” traditional deference to an agency’s statutory interpretation must give way to hesitation and “skepticism” that Congress intended to confer the claimed authority.  The Court referenced cases from “all corners of the administrative state,” including those related to the FDA’s regulation of tobacco products and the CDC’s institution of a nationwide eviction moratorium during the COVID-19 pandemic.  These cases, the Court explained, were decided under the “major questions doctrine” even if the doctrine was not named explicitly.  The Court acknowledged that the agency in each case offered a “colorable textual basis” for its claim of statutory authority, but ultimately noted that, in cases deciding “major questions” such as those cited, the agency must offer “something more than a merely plausible textual basis for the agency action” and must instead “point to clear congressional authorization for the power it claims.”  

In instituting the major questions doctrine, the Court hopes to avoid “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”  It remains to be seen how broadly the major questions doctrine may be applied to other agencies going forward.