What is the Major Questions Doctrine?

The media focus on the Supreme Court’s recent ruling in West Virginia v. EPA has fallen mostly on how it weakened the EPA’s ability to fight climate change. However, that’s not all it did. Business owners might be interested in how the Supreme Court used the case to advance the major questions doctrine.

As Justice Kagan noted in her dissent, the Court had never used the term “major questions doctrine” prior to this case. That has now changed. The term appears 28 times within the opinion, concurrence and dissent, and it may shortly fuel a new wave of legal challenges to government regulations.

The basics of West Virginia v. EPA

As the Supreme Court noted in its opinion, the case of West Virginia v. EPA first arose after the EPA devised its 2015 Clean Power Plan. The plan sought to implement changes to coal and natural gas plants via three measures or “building blocks”:

Heat rate improvements that would allow coal plants to burn fuel more cleanly

A shift from coal-based energy production to natural gas

A shift from coal and natural gas to renewable sources such as wind and solar

The Court found that the first of these building blocks fell within the EPA’s standard regulatory authority and practices. However, it decided that the second and third looked like governmental overreach.

The notable thing about the Court’s response to this potential overreach is the way it addressed it. Instead of conducting a more traditional review of the statute, the Supreme Court explored the issue within the framework of the major questions doctrine.

As an April 6, 2022, report from the Congressional Research Service notes, the major questions doctrine has existed for years. It says, effectively, that although federal agencies may derive their authority from relatively open-ended statutes, they may not regulate matters of great national importance without clear, specific statutory authorization.

In the Supreme Court’s majority opinion, Chief Justice Roberts declared, “This is a major questions case.” He then pointed out why the Court saw it as a major questions case:

It involved a “transformative expansion” of the EPA’s regulatory authority

This authority stemmed from a “long-extant, rarely used statute, designed as a gap filler”

It affected “many vital considerations of national policy”

It involved subjects outside the EPA’s traditional realm of expertise

In short, the Court held that the EPA had effectively used Section 111 of the Clean Air Act to legislate new government policy. It took advantage of vague terms to make extraordinary changes. Instead, the Court said, the EPA needed “clear congressional authorization” to enforce such radical changes.

In their concurrence, Justices Gorsuch and Alito sought to clarify which cases might be major questions cases. They noted three triggers:

When an agency seeks to “resolve a matter of great ‘political significance’” or a matter of “profound debate across the country”

When an agency’s decision may affect “a significant portion of the American economy” or require “billions of dollars in spending”

When an agency imposes on areas that are “the particular domain of state law”

Justices Gorsuch and Alito acknowledged that their list of triggers may not be exhaustive. Yet, they help illustrate the instances in which the Court believes agencies need clear Congressional mandates to enforce their regulations.

Regulations reframed by the major questions doctrine

The Supreme Court’s decision is, of course, notable for how it curtails the EPA’s powers. However, it may be even more remarkable for its formal introduction of the major questions doctrine. The EPA is not the only agency that has worked with vaguely worded statutes. Following the Supreme Court’s decision, business owners may have new reason to challenge regulations established by the FDA, SEC, FTC and other agencies.