A recent article by Pamela King of E&E News discusses the origins of the major questions doctrine clarified by the Court in its recent decision in West Virginia v. EPA. In West Virginia, the Court considered the legal theory at the heart of the Clean Power Plan, an Obama-era EPA regulation that asserted the authority to impose a cap-and-trade “generation shifting” program on the nation’s electric grid under Section 111 of the Clean Air Act. Boyden Gray & Associates filed an amicus brief for the American First Policy Institute, urging the Court to reverse the D.C. Circuit’s decision and to clarify its developing major questions doctrine by holding that whether a regulation poses a “major question” is a threshold issue.
The Court appears to have listened. In a 6-3 majority opinion written by Chief Justice John Roberts, the Court held that West Virginia was a major questions case and that the generation shifting requirement of the Clean Power Plan lacked the necessary clear statutory authority. Crucially, the Court did this at the outset of its analysis.
As King reports, however, some members of the environmental bar and the legal academy have considered West Virginia’s clarification of the major questions doctrine to be built on the doctrinal sand of the “shadow docket”—the Court’s emergency docket, where the Court decides cases on a shorter timeline and with less briefing than on its usual merits docket. The Court, these sources claim, relied on emergency orders vacating the CDC’s eviction moratorium and OSHA’s vaccine mandate to round out the major questions doctrine. According to these critics, the citation of “shadow docket” precedent camouflages a tectonic shift in the Court’s doctrine.
As Boyden Gray & Associates partner Jonathan Berry explains, this criticism rests on a mistaken premise: “The Court generally is not breaking new doctrinal ground in the emergency docket; the main function there is to apply settled doctrine temporarily to new cases and facts . . . . The major questions doctrine is deeply rooted in cases that have come through the ordinary merits docket.” Thus, as the amicus brief explains, the Court has repeatedly looked to the major questions doctrine as a threshold issue in non-“shadow docket” cases. For example, in King v. Burwell, the Court did not defer to the IRS’s interpretation of the Affordable Care Act because the question at issue—Congress’s establishment of a nationwide insurance scheme—was of great economic and political significance and not within the IRS’s expertise. And in Brown & Williamson Tobacco Corp., the Court rejected FDA’s assertion that it could regulate tobacco, explaining that it was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in [the] cryptic . . . fashion” asserted by the agency.