The Impact of West Virginia v. EPA: Reining In the Administrative State

July 05, 2022

By Catharine Cypher and Sam Buchan

America First Policy Institute (AFPI) celebrates the Supreme Court’s decision in West Virginia v. the Environmental Protection Agency (EPA), No. 20-1530, reversing the D.C. Circuit’s decision and holding unlawful the illegal and destructive Clean Power Plan regulation promulgated by President Obama’s EPA. The Supreme Court decision is a victory for the American people as it returns policy-making regarding key decisions to the people’s representatives in Congress and respects the constitutional principle of federalism rather than vesting those far-reaching decisions with unelected bureaucrats. In doing so, the Court took an important step to drain the swamp in Washington, D.C.

The Clean Power Plan (CPP) was a spectacular example of executive overreach, which relied on a lesser-known provision of the Clean Air Act to impose “generation shifting” that required coal plants to shut down or subsidize wind and solar energy to meet otherwise unattainable emissions targets. In a 6-3 majority opinion written by Chief Justice John Roberts, the Court found that Congress did not authorize this plan, and the Court set clear limits on the ability of agencies to arrogate power.  

AFPI’s Constitutional Litigation Partnership and the law firm of Boyden Gray & Associates filed a brief as amicus curiae in the Supreme Court of the United States in support of petitioners in West Virginia v. EPA, No. 20-1530, arguing that the CPP violated the separation of powers.The Constitution vests all legislative Powers in Congress,” the brief explained, “Congress simply may not delegate powers which are strictly and exclusively legislative.” The amicus brief argued that because the CPP involved the blatant executive exercise of legislative authority, it should be evaluated under the Court’s developing “major questions” doctrine and supplied a framework for how the Court should evaluate regulations under the doctrine. The Court listened went as far as outright stating that: “this is a major questions case.”

The AFPI brief made several arguments that were echoed in the opinions of the Court. First, the brief argued that while the Court has sometimes applied the “major questions” doctrine as a way to resolve ambiguity, it is better understood as a “clear statement rule” that requires Congress to “speak clearly when authorizing agencies to make decisions of vast economic significance.” The Court agreed, confirming that the “clear statement” requirement is the appropriate way to apply the major questions doctrine.

The brief also suggested that in determining whether a question is “major,” the Court should use a tripartite distinction, asking if the rule is of “vast political significance,” “vast economic significance,” or encroaches in areas that are “the traditional authority of states.” In his concurring opinion, Justice Neil Gorsuch makes the same division: “First, this Court has indicated that the doctrine applies when an agency claims the power to resolve a matter of great ‘political significance,’ . . . [s]econd, . . . when it seeks to regulate ‘a significant portion of the American economy,’ . . . [and t]hird, . . . when an agency seeks to ‘intrud[e] into an area that is the particular domain of state law.’”

The amicus brief explained that the major questions doctrine would often apply to statutes that implicate the federalism canon. “The two canons frequently travel together because regulations that impinge traditional areas of state authority are also likely to be transformative in nature, politically salient, and economically significant.” Justice Gorsuch agreed when he said, “But unsurprisingly, the major questions doctrine and the federalism canon often travel together. When an agency claims the power to regulate vast swaths of American life, it not only risks intruding on Congress’s power, it also risks intruding on powers reserved to the States.”

Finally, the brief argued that the D.C. Circuit’s approach failed as a matter of statutory interpretation, explaining that the CPP’s definition of “system” had always meant a mechanical system or an operational practice that could be applied at “an individual emissions source” and the regulation was not authorizing “generation shifting that requires source operators to subsidize power from intermittent sources like solar and wind.” The Court agreed. “EPA had always set Section 111 emissions limits based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly . . . never by looking to a ‘system’ that would reduce pollution simply by ‘shifting’ polluting activity ‘from dirtier to cleaner sources.’”

As the Biden Administration continues to engage in executive overreach in many other contexts — such as its illegal vaccine mandates, electric vehicle mandates, and punitive “climate disclosures” by the Securities and Exchange Commission — the importance of this decision is difficult to overstate. AFPI’s Constitutional Litigation Partnership will build on the Court’s opinion today and continue to hold the government accountable and demand transparency while restoring the rule of law and preserving the integrity of our constitutional system. As Justice Gorsuch explains, the Constitution’s rule vesting federal legislative power in Congress is “vital to the integrity and maintenance of the system of government ordained by the Constitution.”

Read the entire Supreme Court Opinion in WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL. here.

Read AFPI’s Amicus Brief here.

Catharine Cypher serves as Chief of Staff to the Constitutional Litigation Partnership and Sam Buchan serves as Director for the Center for Energy Independence.

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