Impact of US Supreme Court's EPA ruling

Tom HalsReuters
The US Supreme Court is increasingly using the 'major questions' doctrine.
Camera IconThe US Supreme Court is increasingly using the 'major questions' doctrine. Credit: AP

The US Supreme Court has curtailed the Environmental Protection Agency's ability to restrict greenhouse gas emissions from power plants in a 6-3 ruling that some legal experts said would more broadly curb the federal government's regulatory power.


The majority opinion by Chief Justice John Roberts said the EPA could not require a sweeping shift from coal to cleaner energy sources by citing what he called a "little-used backwater" section of the Clean Air Act.

The decision invoked the 'major questions' legal doctrine, which requires explicit congressional authorisation before regulators can take consequential actions on issues of vast importance and societal impact.

Roberts' opinion, in the case of West Virginia v EPA, said the agency fell under the doctrine by adopting regulations of unprecedented power aimed at shifting US power generation toward renewable energy sources.

The White House counsel's office and Department of Justice are studying the impact, a White House official said, adding that they may have more to say about the ruling on Friday.


The court has been applying the major questions doctrine to some degree for more than two decades, although generally as one of several tools used to review regulations.

Roberts said Thursday's ruling, which marked the first time the court referred to the doctrine by name in a decision, was a recognition of the common thread running through those cases.

The court applied the approach last year when it ruled the Centers for Disease Control and Prevention lacked authority to impose a national eviction ban to contain the spread of COVID-19.

This year, the court invoked the doctrine when it blocked most of the Occupational Safety and Health Administration's vaccination and testing mandate that was imposed on large employers by the Biden administration.


Thursday's ruling marked a shift in the way the Supreme Court reviews an agency's authority by focusing more attention on the major questions doctrine, said Max Sarinsky, a professor at the New York University School of Law.

"It's inviting courts to apply particular scrutiny and scepticism," Sarinsky said, when judges are reviewing regulations that "tackle new or large problems that America is facing."

Expanding the doctrine has been a goal of conservative groups such as the Cato Institute, which in a brief in the EPA case argued for a "robust" interpretation of the doctrine.

Justice Elena Kagan said in the dissenting opinion that the goal of the ruling was to "prevent agencies from doing important work, even though that is what Congress directed."


Allison Zieve of Public Citizen, a consumer advocacy group that had urged the court to rule for the EPA, said the decision is malleable and could be used by conservative lower court judges to attack the federal government's ability to regulate.

Several administrative law experts said the doctrine will discourage regulators from pushing for innovative policies in politically charged matters.

Specifically, lawyers and analysts said the decision could undermine the ability of the Securities and Exchange Commission to impose a proposed rule requiring public companies disclose climate risks, as well as efforts by the Biden administration to expand labour regulations.

There's also concern the ruling could apply to several forthcoming matters, including expanding mandatory overtime pay to millions of workers, measures to contain the COVID-19 pandemic, attempts to fix the so-called "family glitch" in the Affordable Care Act, as well as efforts to protect medication abortion, experts said.

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