July 1, 2022
Environmental and Workplace Health & Safety Law
West Virginia v. EPA: The Major Questions Doctrine
Arrives to Rein in Administrative Power
By: Allison A. Torrence and T atjana Vujic
On the final d ay of its 2022 t erm, the Supreme Court issu ed its highly-ant icipated opinion in the case of
West Virginia v. EPA, 579 U.S. __ (2022) , addressing EPA’s author ity to regulat e greenho use gases
(GHGs) under the Clean Air Act (CAA), but having much broader implications f or the auth ority of all
administrative agencie s. The opinion signals a significant sh ift in the stand ards used to review
administrative actions. Ch ief Justice Roberts wrote the opin ion for the Co urt, joined by Justices
Thomas, Alito, Gorsuch , Kavanaugh an d Barrett. Justice Gorsuch filed a concur ring opinion, in which
Justice Alito joined, and Justice Kagan filed a dissenting opinio n, in which Justices Breyer and
Sotomayor joined.
Majo r Que stions Doctr ine Has Its Day in th e Sun
In a significant yet long- predicted move, th e six-to-three opin ion rejected EPA’s appro ach to regu lating
GHG emissions under the Obama Administration’s Clea n Power Plan (CPP), under which EPA intended
to regulate existing coal- and nat ural-gas-fir ed power plants pur suant to Section 1 11(d) of the CAA.[1]
Of greater significance, however, th e Court took the opportu nity to fully embrace th e “major question s
doctrine,” a standard several Justices had end orsed but which had n ot yet been f ully unveiled by the
Court. The doctrine no w requires agencies, in instances in which a regulat ion will have major economic
and political conse quences, to p oint to clear sta tutory langu age showing congression al authorization
for the po wer claimed by the agency. In particu lar, in “extraordin ary cases” in which “the history and th e
breadth o f the autho rity that the a gency has asser ted and the economic and political significa nce of
that assertio n” is significant or major, courts have “a reason to hesitate be fore concludin g that
Congress meant to confer such a uthority.” Slip op . at 17. In such extraordin ary cases, the Court will not
read into a mbiguous statutory text authority that is no t clearly spelled o ut. Instead, “something more
than a merely plau sible textual basis for the agency action is n ecessary”; spe cifically, “[t]he age ncy
instead must point to clear congr essional author ization for the power it claims.” Slip op. at 19.
As support for the adoptio n and application of the major que stions doctrine, the Court cited numerous
cases in which agency auth ority was curtailed becau se of extraordinar y circumstances that it
determined req uired a clear congressiona l directive. The cases included the FDA’s attempt to regu late
tobacco (F DA v. Brown & Williamson Tobacco Co rp., 529 U.S. 120 (20 00), the CDC’s effo rt to issue an
eviction moratorium dur ing the COVID-19 pandemic (Alabama Assn. of Rea ltors v. Dept. of Health &
Human Servs., 594 U.S. __ (2021)), EPA’s assertion of permitting aut hority over millions of small
sources like hot els and office bu ildings (Utility Air Regulator y Group v. EPA, 573 U.S. 302 (2014)) , and
OSHA’s endeavor to require 84 million Americans either obtain a COVID-19 vaccine or und ergo weekly
testing (Nation al Federat ion of Indepe ndent Business v. OSHA, 595 U.S. __ (2021) ), all of which,
according to the Court, invo lved an agen cy overstepping its authority to act in situations no t dissimilar
from the extraordina ry circumstances prese nted in W est Virginia v. EPA. The dissent, on th e other
hand, reg arded the majority’s use of the major q uestions doctrin e to be without prece dent, obser ving
that “[t]he Court has ne ver even use d the term ‘major question s doctrine’ bef ore.” Dissent a t 15.
As discussed below, when the Court d etermines that the major questions doctr ine applies, eve n if the
administrative action a rguably fits within what may seem like a broad gr ant of statut ory author ity, it is
not necessar ily enough to a uthorize the agency to act. Rather , if the court finds that the a dministrative
rule is an “e xtraordinary case,” i.e., will have a significant eco nomic or political impact, the age ncy must
base its action o n very clear co ngressional au thorization to justify the power it is attempting to asser t.
