Consumer protection and the Supreme Court's new "major questions doctrine"

On the last day of its term, the Supreme Court issued its decision in West Virginia v. EPA—a decision highly anticipated, and perhaps dreaded, by federal agencies, administrative law experts, and members of the public who care about the ability of the government to act to protect public health, safety, consumer interests, and the environment. The suspense stemmed from the likelihood that the Court would address the so-called “major questions doctrine”—a new approach to judicial review of agency rules that hovered in the background of a case that primarily concerned an already defunct Clean Air Act regulation.

The Court’s majority opinion in the case did not disappoint … in that it addressed the major questions doctrine. The majority opinion adopted the “major questions doctrine” as the “label” for “an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” The Chief Justice explained that, “in extraordinary cases” concerning agency action, “something more than a merely plausible textual basis” is necessary to support the agency’s claim to statutory authority. “The agency instead must point to clear congressional authorization for the power it claims.” The “major questions doctrine” is thus a “clear statement rule” applicable when an agency makes an “extravagant” assertion of statutory authority.

Where the new doctrine applies, the Court will not defer to the agency’s interpretation of its statutory authority, even if the scope of the authority is ambiguous. To that extent, the decision is a step back from the Court’s longstanding approach to review of agency action, under which it gives so-called Chevron deference to the agency’s interpretation of ambiguous statutory language, when the language reflects that Congress intended for an agency to fill in the gaps. That step back is no small thing. At the same time, deference had already failed to save the agency actions in those few “extraordinary” cases that the Court cited as forerunners of the major questions doctrine.

The good news (for people concerned about health, safety, and the environment) is that the Court did not adopt the very restrictive formulation of the doctrine advocated by some—a formulation under which agencies would lack authority to issue significant regulations because of the notion that Congress could not constitutionally delegate broad authority to federal agencies. Had that view prevailed, agencies’ ability to do their jobs would have faced a huge barrier. Fortunately, it  did not carry the day. Indeed, the primary precedent the majority relied on for the major question doctrine was FDA v. Brown & Williamson (2000), in which the Supreme Court held that the FDA lacked authority to regulate tobacco. Yet in discussing that case, the Court nowhere suggested that Congress’s later delegation to the FDA of express authority over tobacco might be unconstitutional.

In addition, the Court did not suggest that every significant issue that an agency tackles through regulation will require an explicit statement from Congress to authorize the agency’s action. According to the Court, the major questions doctrine applies only when the language and design of the statute that the agency implements, its context, and the way it has been used in the past make it unreasonable to think Congress intended to give the agency the power it claims. Not every agency regulation will trigger the major questions doctrine, as defined yesterday. Most agency actions do not approach the boundaries of authority that the Court says it is addressing. Thus, as defined by the majority opinion, the doctrine should apply to rare, “extraordinary” cases similar to those where the Court has previously found an agency stepped completely outside its bounds, and it should play a role in very few cases in the future, as it has in the past.

The problem, though, is that one person’s extraordinary case may be another’s garden-variety exercise of clearly conferred authority. In this case, for example, Justice Kagan (whose discussion of the major questions doctrine is similar to that in Public Citizen's amicus brief) saw strong reasons to think that an ordinary construction of the Clean Air Act left no doubt that the agency had the authority to issue the regulation under consideration in the case. Because the definition is malleable, we will likely see a lot of “major questions” challenges to agency actions. Although most of these challenges will lack merit, some may succeed in instances that, like this case, do not seem to involve “extraordinary” assertions of agency authority.

The limits on the scope of the doctrine articulated by the Court mean that agencies, and advocates for regulation to protect the public, should not shy away from adopting and advocating new regulatory initiatives aimed at significant problems when those actions are well grounded in the agencies’ authorizing statutes. The major questions doctrine will give new ammunition to those challenging such regulations, and it will likely sometimes contribute to decisions wrongly striking down agency action. But major questions doctrine challenges should not succeed in the face of cogent arguments that Congress would reasonably have understood that the statutory language and design delegated to the agency authority to take the challenged action. Predictions that the doctrine makes major regulatory initiatives futile would be both wrong and potentially self-fulfilling—deterring agencies from acting or encouraging courts to strike down agency actions based on that broad reading of the Court’s opinion.

To be sure, the Court’s announcement of the doctrine, and its application to a regulation that should have survived even under the majority’s articulation of the doctrine, are harmful developments. Overstating the breadth of the doctrine would make matters even worse.

Comments

[Bob Belovich]

Alison

Thank you for your explanation of this case. As a private consumer side litigator, I do not have occasion to delve into regulatory law. However this case may shake a number of legal firmaments. This case may result in the law of unintended consequences may apply to bite elite interests when proper facts are presented.