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Justices Cement ‘Major Questions’ as Test for Sweeping Rules

June 30, 2022, 8:54 PM

The Supreme Court’s conservative majority curtailed the Biden administration’s ability to tackle climate change by invoking the “major questions” doctrine, a concept that’s been percolating for decades but only now was more fully fleshed out.

Chief Justice John Roberts said agencies “must point to clear congressional authorization” when undertaking policies of great “economic and political significance.” The justices will be skeptical of sweeping agency action, particularly when the stakes are high, Roberts wrote for a 6-3 court in a ruling likely to have an impact well beyond environmental regulation.

Writing for the dissent, Justice Elena Kagan suggested the opinion “announces the arrival of the ‘major questions doctrine,’” a term she noted the court had never used before and suggested had “magically” appeared in this case.

Justices have nodded to the doctrine a handful of times since the idea was first invoked by the court in 1994, said University of Dayton School of Law professor Kevin Leske, who specializes in administrative law.

In a separate concurrence, Justice Neil Gorsuch went further, saying the doctrine has its roots in the bedrock principle of separation of powers.

Regardless of its origins, the current 6-3 conservative majority court has been citing it more aggressively. In the past year, the court has used it to strike down the eviction moratorium intended to halt Covid transmission, nix the Biden administration’s vaccine-or-test rule for private employees, and, now, to limit the ways EPA can regulate climate change.

“Chief Justice Roberts has transformed the major questions doctrine from a rarely used concept to a central tool of statutory construction” said University of North Carolina law professor Jonas Monast.

The court has never really laid out the contours of the doctrine, said William Yeatman of the libertarian Cato Institute —until Thursday’s EPA decision.

The biggest question has been what counts as a “major question” that triggers the court’s skeptical eye, Yeatman said.

Roberts’ opinion fleshes that out by pointing to a handful of factors that could implicate the doctrine, he said.

Those include whether the agency action is unprecedented, outside of the agency’s normal expertise, or inconsistent with past actions. The timing of the statute that the agency says gives it the power to act in its desired role can also play a role, Roberts said.

Where previous cases looked to see if the agency’s actions conflicted with the direction of Congress, the conservative justices base their “decision on their general sense that the EPA went too far,” Monast said.

Administrative law scholars disagree on whether the doctrine will be a wrecking ball for the administrative state or will only be deployed in really big cases, but agree that it puts pressure on Congress to act.

The court’s ruling is a signal to Congress “to get in the game,” said Case Western Reserve law professor Jonathan Adler.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com