{"id":2529,"date":"2022-08-15T09:00:44","date_gmt":"2022-08-15T13:00:44","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2529"},"modified":"2025-12-22T19:35:54","modified_gmt":"2025-12-22T23:35:54","slug":"implicit-rejection-of-massachusetts-v-epa-the-prominence-of-the-major-questions-doctrine-in-checks-on-epa-power-frances-williamson","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/implicit-rejection-of-massachusetts-v-epa-the-prominence-of-the-major-questions-doctrine-in-checks-on-epa-power-frances-williamson\/","title":{"rendered":"Implicit Rejection of Massachusetts v. EPA: The Prominence of the Major Questions Doctrine in Checks on EPA Power \u2013 Frances Williamson"},"content":{"rendered":"\n
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Implicit Rejection of Massachusetts v. EPA<\/em>: The Prominence of the Major Questions Doctrine in Checks on EPA Power<\/h2>\n\n\n\n

Frances Williamson*<\/h2>\n\n\n\n

Over the past four decades, many landmark administrative law cases have involved challenges to environmental agency action.[1]<\/sup><\/a> Environmental regulation exemplifies the tensions within the administrative state: unelected agencies tackle highly technical problems with pervasive nationwide effects that impact industries and individuals alike. The Court\u2019s recent decision in West Virginia v. Environmental Protection Agency <\/em>is one such example.[2]<\/a> In West Virginia<\/em>, the Court considered whether the EPA\u2019s broader conception of its authority to regulate \u201coutside-the-fence\u201d[3]<\/sup><\/a> is within the power granted by the Clean Air Act (CAA). The 6-3 opinion, authored by Chief Justice Roberts, takes aim at broad assertions of agency power in the absence of clear congressional intent through the major questions doctrine (MQD), a tool of statutory interpretation typically used as an appendage of Chevron<\/em> analysis that the Court now relies upon  as a standalone principle.[4]<\/sup><\/a> The prominence of the MQD in West Virginia<\/em> signals the Court\u2019s growing skepticism of broad agency power and its willingness to use the doctrine in statutory interpretation. In addition, the majority and concurrence in West Virginia <\/em>suggest that the current Court would have decided Massachusetts v. EPA<\/em>,[5]<\/a> another landmark environmental case, differently.[6]<\/sup><\/a><\/p>\n\n\n\n

I. Background<\/strong><\/p>\n\n\n\n

Section 111(a) of the CAA grants the EPA the power to regulate power plants as stationary sources under a standard called the \u201cbest system of emission reduction\u201d (BSER).[7]<\/sup><\/a> Under this framework, the EPA applies a system of reduction, determined \u201cbest\u201d by the EPA Administrator, to emissions from new and existing plants.[8]<\/a> In its 2015 Clean Power Plan Rule (CPP), the EPA set the BSER for existing coal and gas power plants in a way that \u201ccaused a shift toward wind, solar, and natural gas.\u201d[9]<\/sup><\/a> This approach provided the EPA with significant flexibility in the demands it placed on power plants\u2014\u201cin translating the BSER into an operational emissions limit, EPA could choose whether to require anything from a little generation shifting to a great deal.\u201d[10]<\/sup><\/a> The EPA then settled on a program that forced the States to implement generation-shifting practices.[11]<\/sup><\/a><\/p>\n\n\n\n

Shortly after the 2016 presidential election, the Trump Administration repealed the rule and replaced the CPP with the Affordable Clean Energy (ACE) Rule.[12]<\/a> The ACE Rule was challenged in the D.C. Court of Appeals in 2020, which determined that, contrary to what the Trump EPA asserted in its repeal of the CPP, the EPA possessed the authority to force generation shifting.[13]<\/sup><\/a> Shortly after this decision, and the 2020 election, President Biden\u2019s EPA requested a stay of the court\u2019s mandate so that the CPP did not \u201cimmediately go back into effect.\u201d[14]<\/sup><\/a> However, several states challenged the EPA\u2019s authority to regulate emissions under the CPP, culminating in West Virginia<\/em>.<\/p>\n\n\n\n

II. Opinion<\/strong><\/p>\n\n\n\n

In West Virginia<\/em>, the Court considered whether the EPA had the authority to \u201crestructure the Nation\u2019s overall mix of electricity generation. . . [as] the \u2018best system of emission reduction\u2019 within the meaning of Section 111.\u201d[15]<\/sup><\/a> Writing for the Court, Chief Justice Roberts asserted that this is a \u201cmajor questions case\u201d[16]<\/sup><\/a> because it involved an agency \u201casserting highly consequential power beyond what Congress could reasonably be understood to have granted.\u201d[17]<\/sup><\/a> The majority asserted that the EPA constructed a regulatory framework devoid of clear statutory roots; basing its \u201cnewfound power in the vague language\u201d of \u00a7111(d) of the CAA, the EPA concluded that this vague language \u201callowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.\u201d[18]<\/sup><\/a> The Court stated that the EPA had never used a systematic approach like generation shifting that looked beyond individual source emissions reduction or technological standards, and Congress would not employ the \u201cpreviously little-used backwater of Section 111(d)\u201d to confer such authority on the EPA.[19]<\/sup><\/a> Essentially, the EPA\u2019s interpretation of Section 111(d) gave the EPA unprecedented authority to demand \u201cmuch greater reductions in emissions based on a very different kind of policy judgment: that it would be \u2018best\u2019 if coal made up a much smaller share of national electricity generation.\u201d[20]<\/sup><\/a> The majority also described how the Court could not ignore the fact that Congress \u201cconsidered and rejected\u201d such a course of action \u201cmultiple times.\u201d[21]<\/sup><\/a> To the question of \u201cwhether the \u2018best system of emission reduction\u2019 identified by EPA in the [CPP] was within the authority granted to the Agency in Section 111(d),\u201d[22]<\/sup><\/a> the Court employed the MQD and answered with a resounding \u201cno.\u201d<\/p>\n\n\n\n

III. Concurrence and Dissent<\/strong><\/p>\n\n\n\n

Justice Gorsuch\u2019s concurrence further bolstered the history behind the MQD and traced its roots to the separation of powers doctrine.[23]<\/sup><\/a>  <\/sup>Justice Gorsuch first outlined four questions that identify whether agency action is based on a valid, clear statement by Congress.[24]<\/sup><\/a>  Ultimately, he determined that the EPA\u2019s assertion of power in the form of the CPP fit each category, and despite the dissent\u2019s criticism, Justice Gorsuch concluded that the Court\u2019s decision returned power to the \u201cpeople\u2019s elected representative[s]\u201d;[25]<\/sup><\/a> agency power could not be used to circumvent constitutional design.<\/p>\n\n\n\n

In her dissent, Justice Kagan criticized the majority and concurrence, claiming that the majority flouted \u201cjudicial modesty\u201d in an attempt to constrain the EPA and alleging that the concurrence failed to rigorously analyze the statutory text.[26]<\/sup><\/a> Justice Kagan stated that Congress used \u201ccapacious\u201d language[27]<\/sup><\/a>  to permit the EPA to address \u201cnew and big\u201d problems.[28]<\/sup><\/a> Specifically targeting the majority\u2019s use of the MQD, Justice Kagan argued that the MQD was inappropriate in the instant case because there was no \u201cmisfit\u201d between agency action and statute; she emphasized that the CPP \u201cfits perfectly\u201d within the EPA\u2019s wheelhouse. [29]<\/a><\/sup> Justice Kagan concluded that simply answering \u201cmajor issues of public policy\u201d did not expose an agency to judicial scrutiny.<\/p>\n\n\n\n

IV. Implications for Massachusetts v. EPA <\/em>and the Administrative State<\/strong><\/p>\n\n\n\n

As the nation\u2019s approach to climate change continues to be litigated, environmental law will become increasingly salient. The impact of the majority\u2019s use of the MQD in West Virginia <\/em>is not limited to power plant regulation; this case signaled a shift in the Court\u2019s view of agency power. In the past, the MQD appeared only as an interpretative device under the Chevron<\/em> doctrine,[30]<\/sup><\/a> where judges used it in the \u201cstep one\u201d analysis to determine whether a \u201cstatute [was] silent or ambiguous.\u201d[31]<\/sup><\/a> In West Virginia<\/em>, the doctrine appeared without mention of Chevron<\/em>.<\/p>\n\n\n\n

The MQD\u2019s prominence in West Virginia <\/em>implicitly rejected the logic used in past administrative and environmental decisions, notably Massachusetts v. EPA<\/em> (2007).[32]<\/sup><\/a> In Massachusetts,<\/em> the Court rejected the EPA\u2019s argument that it lacked the statutory authority to regulate greenhouses gases on a principle similar to the MQD; Congress would have spoken clearly if it intended the EPA to regulate greenhouse gases because of their political and economic significance.[33]<\/a> The EPA relied on the Court\u2019s decision in Brown & Williamson<\/em>,[34]<\/a> and argued that \u201cimposing emission limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco.\u201d[35]<\/sup><\/a> The Court, however, rejected these arguments and determined that the \u201cEPA\u2019s reliance\u201d on Brown & Williamson<\/em> was \u201cmisplaced.\u201d[36]<\/sup><\/a> The majority stated that the analogy failed because 1) while it was \u201cunlikely that Congress meant to ban tobacco products,\u201d it was plausible Congress meant to allow the EPA to \u201conly regulate emissions;\u201d[37]<\/sup><\/a> and 2) in Brown & Williamson<\/em>, the Court \u201cpointed to an unbroken series of congressional enactments that made sense only if adopted \u2018against the backdrop of the FDA\u2019s consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco,\u2019\u201d[38]<\/sup><\/a> while the EPA had \u201cnot identified any congressional action that conflict[ed] with the regulation of greenhouse gases from new motor vehicles.\u201d[39]<\/sup><\/a> For these reasons, the Court rejected the EPA\u2019s reliance on Brown & Williamson<\/em> and declared that the EPA had the authority to regulate greenhouse gases.<\/p>\n\n\n\n

The result of West Virginia <\/em>runs counter to the 2007 decision in Massachusetts<\/em>, suggesting that today\u2019s Court would decide Massachusetts <\/em>differently. In West Virginia<\/em>, the Court rejected its reasoning in Massachusetts<\/em>; it construed EPA regulation of emissions as a major question and interpreted congressional silence as a limit rather than an authorization. First, the West Virginia <\/em>Court departed from Massachusetts<\/em> by holding that the EPA\u2019s CPP posed a major question because it did not \u201conly regulate emissions\u201d but reconfigured the national landscape of power generation. Emphasizing that the EPA could demand \u201cmuch greater reductions in emissions based on a very different kind of policy judgment\u201d than that which Congress authorized, the Court diverged from its earlier reasoning in Massachusetts <\/em>where it had rejected reliance on Brown & Williamson<\/em>.[40]<\/sup><\/a> In Massachusetts, <\/em>the Court wrote that there was nothing \u201ccounterintuitive to the notion that EPA can curtail the emission of substances\u201d that were harming the climate, so a comparison with Brown & Williamson <\/em>was unsuitable.[41]<\/sup><\/a> The Court highlighted that because there was no \u201cmismatch\u201d between regulating pollutants and emissions, unlike the FDA and tobacco, the EPA had not overreached its statutory authority.[42]<\/sup><\/a> The MQD as articulated by the West Virginia<\/em> Court, however, did not rely on statutory \u201cmismatch\u201d;[43]<\/sup><\/a> despite Justice Kagan\u2019s urging, the MQD weighed principles such as the separation of powers against agency interpretation.[44]<\/sup><\/a> While the Court of 2007 saw nothing incongruous between forcing the EPA to regulate an entirely new category of pollutants and Congressional ambiguity on the matter, the 2022 Court would view Congressional silence as a red flag; extreme authorizations of agency power require extremely clear language from Congress. Therefore, if faced with the same question the Court faced in Massachusetts<\/em>, today\u2019s Court would curb the EPA\u2019s power in the absence of clear congressional authorization.<\/p>\n\n\n\n

Second, in West Virginia<\/em>, the Court departs from its reasoning in Massachusetts <\/em>by interpreting congressional silence as a limit, rather than a blessing, on regulation. The West Virginia <\/em>Court pointed to \u201can unbroken series of congressional enactments that made sense only if adopted \u2018against the backdrop\u2019\u201d of the EPA\u2019s inability to regulate beyond individual sources under Section 111(d) of the CAA;[45]<\/sup><\/a> the Court concluded that the petitioners had \u201cidentified . . . congressional action that conflicts with\u201d[46]<\/sup><\/a> the CPP. The Court stated that the EPA did not succeed in its claim that the \u201cvague language\u201d of \u00a7111(d) of the CAA \u201callowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.\u201d[47]<\/sup><\/a> The majority highlighted Congress\u2019s reluctance to impose the kind of regulatory scheme outlined in the CPP as well as the absence of \u201coutside-the-fence\u201d regulation of power plants.[48]<\/sup><\/a> The Court did not ignore that Congress \u201cconsidered and rejected\u201d such a course of action \u201cmultiple times\u201d and that a systematic approach like generation-shifting remains unprecedented under the CAA.[49]<\/sup><\/a> In Massachusetts, <\/em>on the other hand, the Court seemed content to state that \u201cthe EPA ha[d] not identified any congressional action that conflict[ed] in any way with the regulation of greenhouse gases from new motor vehicles,\u201d another reason why the petitioners should not have relied on Brown & Williamson<\/em>, where Congress denied an agency the ability to regulate tobacco.[50]<\/sup><\/a> The Massachusetts <\/em>Court saw the EPA\u2019s failure to \u201cdisavow[] the authority to regulate greenhouse gases\u201d as an open door through which additional regulatory power could enter.[51]<\/sup><\/a> The West Virginia <\/em>Court took the opposite stance and recognized the similarities between the EPA\u2019s actions and those of the FDA in Brown & Williamson<\/em>; the West Virginia<\/em> Court concluded that Congress\u2019s failure to avow <\/em>the agency\u2019s authority to regulate never opened the door in the first place. The West Virginia <\/em>Court would view the major policy implications and congressional silence in Massachusetts <\/em>as a resounding \u201cno\u201d to regulation, not a \u201cyes.\u201d<\/p>\n\n\n\n

The petitioners in West Virginia <\/em>raised similar points as the petitioners in Massachusetts<\/em>, but this time, the Court accepted the arguments and placed the Brown & Williamson <\/em>decision at the forefront of a \u201cseries of significant cases\u201d that address the \u201cparticular and recurring problem\u201d[52]<\/sup><\/a> of agency aggrandizement of power. In doing so, the Court embraced Brown & Williamson<\/em> as a limit on EPA power. While the Court did not name the MQD in its analysis in Massachusetts<\/em>, the EPA employed the principles underlying the doctrine\u2014the absence of explicit Congressional authorization and the unique political history of climate change.<\/p>\n\n\n\n

V. Implications of Justice Gorsuch\u2019s Concurrence for Massachusetts v. EPA <\/em>and the Administrative State<\/strong><\/p>\n\n\n\n

Justice Gorsuch\u2019s proposed analysis of the MQD differed from Chief Justice Roberts\u2019s two-step analysis by forcing a more rigorous examination of the potential ambiguity in the statutory text. In West Virginia<\/em>, Chief Justice Roberts performed (in the words of Justice Kagan) a two-step MQD analysis, first asking if the agency action qualifies as an \u201cextraordinary case\u201d and then asking where the agency finds its \u201cclear congressional authorization\u201d for its action.[53]<\/sup><\/a> It was unclear which method the Court adopted in Massachusetts<\/em>; Justice Kagan remained convinced that past Courts only used a \u201ccommon sense\u201d approach that analyzed \u201cthe fit between the power claimed, the agency claiming it, and the broader statutory design.\u201d[54]<\/a> Despite Justice Kagan\u2019s assertion, Chief Justice Roberts\u2019s two-step approach mapped onto the Court\u2019s analysis in Massachusetts<\/em>; the difference is that the Massachusetts <\/em>Court stopped at step one: the question of whether the issue of greenhouse gas regulation was an \u201cextraordinary case.\u201d Because there was no \u201cmismatch\u201d between the EPA\u2019s authority and the agency action at-issue, the Massachusetts <\/em>Court did not view the question as \u201cextraordinary\u201d and stopped at the first step of Chief Justice Roberts’s major questions analysis.[55]<\/a> Although the Court addressed congressional authorization, it did so only by pointing to the absence<\/em> of congressional dis<\/em>approval. The Massachusetts<\/em> Court did not rigorously analyze the second element (whether Congress expressly authorized the agency action) after they determined that the issue was not extraordinary.<\/p>\n\n\n\n

Justice Gorsuch proposed four questions that courts must ask when performing major questions analysis:<\/p>\n\n\n\n