Administrative Apprehension: West Virginia v. EPA and Chevron Deference
Blog Post | 111 KY. L. J. ONLINE | October 4, 2022
Administrative Apprehension: West Virginia v. EPA and Chevron Deference
By: Kenneth H. Decker, Staff Editor, Vol. 111
Administrative Apprehension: West Virginia v. EPA and Chevron Deference
In 2022, the Supreme Court of the United States decided West Virginia v. EPA.[1] In any other Supreme Court term, West Virginia may have been considered the blockbuster,[2] but in a term that issued landmark decisions on abortion,[3] gun ownership,[4] and religious expression,[5] West Virginia was just one case among a field of other headline grabbers.[6] Nevertheless, West Virginia’s holding and analysis of the Clean Air Act contributes to the continued weakening of a test that has been at the heart of Administrative Law by supplanting it with an obscure test known as the “Major Questions Doctrine.”[7]
West Virginia had a complicated set of facts that gave rise to the issue of whether the Clean Air Act (“CAA”) permitted the Environmental Protection Agency (“EPA”) to implement certain provisions of the Clean Power Plan (“CPP”).[8] The CAA generally allows the EPA to regulate pollutant emissions from both new and existing power plants.[9] In creating certain regulations, the EPA must develop a “standard of performance” which is defined as “a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which . . . has been adequately demonstrated.”[10] In 2015, the Obama administration laid out the terms of the CPP.[11] Certain provisions of the CPP had to do with regulating pollutant emissions from existing power plants by means of “heat rate improvements” and generation shifting.[12] Generation shifting “was a measure . . . that would have required a shift in electricity production from certain fossil fuel power generation sources, primarily fired by coal and natural gas, to other sources that emit less carbon dioxide.”[13] In other words, generation shifting would have required certain power plants to transition from using certain fossil fuels to less pollutive sources of energy.[14] After the Trump administration repealed the CPP,[15] and after a lower court “vacated” the repeal,[16] the Supreme Court granted certiorari to answer the question of whether generation shifting as it existed under the CPP was compatible with the CAA.[17]
The Court ultimately held that the generation shifting provision of the CPP violated the Major Questions Doctrine.[18] The Major Questions Doctrine is a tool used for evaluating an administrative agency’s interpretation of a statute and provides that “a court will not defer to an agency’s interpretation . . . where the case involves an issue of deep economic or political significance or . . . could effectuate an enormous and transformative expansion of the agency’s regulatory authority.”[19] The Court began its Major Questions analysis by outlining the ways in which the EPA had historically exercised authority under the provision of the CAA that supposedly allowed for generation shifting.[20] To this end, the Court explained that the EPA had traditionally exercised authority that “was limited to ensuring the efficient pollution performance of each individual regulated source.”[21] In comparison, the Court characterized EPA’s claimed authority to implement the generation shifting provision of the CPP as “unprecedented” because it would enable the EPA to restructure a significant portion of the national energy sector based on what it deemed to be the “best” regulatory system for reducing emissions from power plants.[22] Thus, implementation of the generation shifting provision of the CPP would violate the Major Questions Doctrine because it would initiate phenomena of such economic transformation that explicit Congressional approval for such a measure would be required.[23] What was actively missing from the Court’s analysis was a doctrine that has been a significant part of Administrative Law for nearly forty years; a doctrine known as Chevron deference.[24]
In Chevron, U.S.A. v. Natural Resources Defense Council, the Court outlined a test designed to evaluate whether an administrative agency exceeded its authority in implementing a regulation on the basis of statutory interpretation.[25] The first step is to discern the clarity of Congress’ intention in enacting the statute which provides administrative authority.[26] If the intention of Congress is unambiguous as to what extent an agency can exercise its authority, then an administrative action shall be struck down if it violates such intentions.[27] If the intention of Congress is “silent or ambiguous” as to what extent an agency can exercise its authority, “the question for the court is whether the agency’s [statutory interpretation] is based on a permissible construction of the statute.”[28] If the agency’s statutory interpretation is permissible, the agency’s regulation shall be upheld.[29]
The Court’s opinion in West Virginia indicates that the Court is prepared to supplant or at least substantially weaken Chevron with the Major Questions Doctrine and undermine the ability of administrative agencies to promulgate effective regulations.[30] Lawyers and scholars have suggested that cases that rely on the Major Questions Doctrine demonstrate a modification of Chevron as opposed to an abolishment of it.[31] While this may be true,[32] West Virginia is one of many cases where the Court has struck down regulatory action using the Major Questions Doctrine as its primary authority.[33] This can be problematic, as Justice Kagan observed in her dissenting opinion, given that laws which direct administrative agencies to act in certain areas are inherently general because Congress knows it lacks expertise and the ability to resolve issues in those areas.[34] Thus, the way the Court employs the Major Questions doctrine frustrates the relationships that Congress and administrative agencies are supposed to have.[35] Justice Kagan stated, “Congress knows what it doesn’t and . . . therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.”[36] From this perspective,[37] the Court’s opinion weakens an expert agency’s ability to resolve complicated issues on a basis that Chevron was perhaps supposed to have already accounted for.[38]
Make no mistake, West Virginia did not overrule Chevron, so there must be some part of it that remains.[39] How much of it remains and where the Major Questions Doctrine fits into its analysis will remain a subject that scholars continue to debate.[40]
[1] West Virginia v. EPA, 142 S.Ct. 2587, 2599–2616 (2022).
[2] See Adam Liptak, Supreme Court Strips Federal Government of Crucial Tool to Control Pollution, N.Y. Times, https://www.nytimes.com/live/2022/06/30/us/supreme-court-epa#epa-carbon-emissions-scotus (last updated July 1, 2022).
[3] See Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228, 2242–43 (2022).
[4] See New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111, 2122 (2022).
[5] See Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2427–28, 2432–33 (2022).
[6] Adam Liptak & Alicia Parlapiano, A Transformative Term at the Most Conservative Supreme Court in Nearly a Century, N.Y. Times (July 1, 2022), https://www.nytimes.com/2022/07/01/us/supreme-court-term-roe-guns-epa-decisions.html.
[7] West Virginia v. EPA, 142 S.Ct. 2587, 2607–16 (2022); id. at 2628–29 (Kagan, J. dissenting); see Chevron, U.S.A. v. Nat. Res. Def. Council, 467 U.S. 837, 842–45 (1984); See sources cited infra note 31.
[8] West Virginia, 142 S.Ct. at 2599–2606.
[9] Id. at 2599; 42 U.S.C. §§ 7411(a) – (d).
[10] West Virginia, 142 S.Ct. at 2599; 42 U.S.C. § 7411(a)(1) (emphasis added).
[11] Fact Sheet: Overview of the Clean Power Plan, U.S. Env’t Prot. Agency, https://archive.epa.gov/epa/cleanpowerplan/fact-sheet-overview-clean-power-plan.html#print (last visited Sept. 22, 2022); West Virginia, 142 S.Ct. at 2602.
[12] West Virginia, 142 S.Ct. at 2602–03.
[13] Bethany Curcuru, Seth Kerschner, Laura Mulry & Taylor Pullins, Supreme Court Rules EPA Cannot Require Existing Fossil Fuel Power Facilities to Shift to Lower CO2 Emitting Sources of Electricity, Jdsupra (July 5, 2022), https://www.jdsupra.com/legalnews/supreme-court-rules-epa-cannot-require-2205143/#:~:text=Generation%20shifting%20was%20a%20measure%20EPA%20proposed%20that,to%20other%20sources%20that%20emit%20less%20carbon%20dioxide.
[14] Id.; see also Electricity generation, Oecd, https://data.oecd.org/energy/electricity-generation.htm (last visited Oct. 1, 2022) (defining electricity generation).
[15] Umair Irfan, Trump’s EPA Just Replaced Obama’s Signature Climate Policy With a Much Weaker Rule, Vox, https://www.vox.com/2019/6/19/18684054/climate-change-clean-power-plan-repeal-affordable-emissions (last updated June 19, 2019, 3:51 PM); West Virginia, 142 S.Ct. at 2604–05.
[16] West Virginia, 142 S.Ct. at 2605–06.
[17] See id. at 2602–07, 2614–16.
[18] Id. at 2605–16.
[19] Kevin O. Leske, Major Questions About the “Major Questions” Doctrine, 5 Mich. J. Env’t & Admin. L. 479, 480 (2016).
[20] West Virginia, 142 S.Ct. at 2602–04, 2607, 2610–13.
[21] Id. at 2612.
[22] Id. at 2607, 2611–13.
[23] Id. at 2607–10, 2612–16; see Leske, supra note 19, at 480 (describing the Major Questions Doctrine).
[24] See West Virginia, 142 S.Ct. at 2599–2616 (Chevron is not actively mentioned in the Court’s opinion); see Chevron, U.S.A. v. Nat. Res. Def. Council, 467 U.S. 837, 842–45 (1984); Leske, supra note 19, at 481–84, 499 (describing Chevron deference and the importance of its erosion).
[25] Chevron, U.S.A., 467 U.S. at 842–45.
[26] Id. at 842–43.
[27] Id.
[28] Id. at 843.
[29] Id. at 843–44.
[30] See West Virginia v. EPA, 142 S.Ct. 2587, 2607–16 (2022); id. at 2628–29 (Kagan, J. dissenting); see Chevron, U.S.A., 467 U.S. at 842–45; see sources cited infra note 31.
[31] See Jonathan D. Brightbill, ‘West Virginia’ and ‘Chevron’: The Supreme Court Cuts Back on Agency Deference, Alm | law.com (July 08, 2022, 5:57 PM), https://www.law.com/texaslawyer/2022/07/08/west-virginia-and-chevron-the-supreme-court-cuts-back-on-agency-deference/; see also Alec D. Tyra, Major Questions for Chevron Deference and Future Environmental Regulations: The Supreme Court in West Virginia v. EPA, Freeman Mathis & Gary: BlogLine (July 18, 2022), https://www.fmglaw.com/business-litigation/major-questions-for-chevron-deference-and-future-environmental-regulations-the-supreme-court-in-west-virginia-v-epa/ (discussing what issues related to Chevron remain unresolved after West Virginia); see also Leske, supra note 19, at 499–500 (discussing the relationship between and the significance of the Major Questions Doctrine and Chevron deference); see also Alden Abbott, Why a “Major Questions” Exception to Chevron Deference Is Inappropriate—and No Substitute for Regulatory Reform, The Heritage Foundation (Sept. 29, 2017), https://www.heritage.org/courts/report/why-major-questions-exception-chevron-deference-inappropriate-and-no-substitute (arguing that the Major Questions Doctrine as an exception to Chevron deference is undesirable).
[32] See sources cited supra note 31.
[33] West Virginia, 142 S.Ct. at 2607–16; see Leske, supra note 19, at 484–97.
[34] West Virginia, 142 S.Ct. at 2628, 2642 (Kagan, J., dissenting).
[35] Id.at 2628–29, 2633, 2642–43 (Kagan, J., dissenting).
[36] Id. at 2628 (Kagan, J., dissenting).
[37] Id. (Kagan, J., dissenting).
[38] Id. at 2602–16; id. at 2626–29 (Kagan, J., dissenting); see also Chevron, U.S.A. v. Nat. Res. Def. Council, 467 U.S. 837, 842–45 (1984) (providing a test for when a court is confronted with a challenged administrative action); see also Leske, supra note 19, at 497–500 (attempting to reconcile Major Question cases with Chevron and address the implications of the Major Questions Doctrine).
[39] See West Virginia, 142 S.Ct. at 2599–2616 (Chevron is not actively mentioned in the Court’s opinion).
[40] See sources cited supra note 31.