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Pollution & Health“Major Questions” for Texas (and for the Environment)

“Major Questions” for Texas (and for the Environment)

“Major Questions” for Texas (and for the Environment)

Defending clean automotive regulations and tracking judicial decision-making

Last June, the Supreme Court formally unveiled the “major questions” doctrine within the landmark environmental case West Virginia v. EPA. In rejecting EPA’s plan to control greenhouse gas emissions from existing power plants under Section 111(d) of the Clean Air Act, the Court stated that “agency decisions of vast economic and political significance” (i.e., people who pose “major questions”) should be made “pursuant to a transparent delegation” from Congress. 

The Court held that EPA’s Clean Power Plan, which might have facilitated an ongoing power industry shift from coal and natural gas to renewable energy sources, violated the doctrine because such a shift fell outside the authority Congress created in 111(d). (Sean Hecht and I co-authored an amicus temporary in support of EPA within the case.)

West Virginia portended significant changes in federal administrative law normally and environmental law specifically, given the breadth and ambition of a lot of core federal environmental statutes and the present Court’s clear interest in restricting agency authority. Last fall, a gaggle of Republican-led states and fossil fuel firms delivered, difficult EPA’s 2021 greenhouse gas emissions standards for automobiles.

The petitioners argue that the standards, that are based partially on anticipated increases in electrification within the US light-duty vehicle market (as much as 17 percent of sales by 2026) violate the “major questions” doctrine, along with other related claims. Briefly, they allege that EPA is barred from issuing rules that consider electrification as a compliance strategy because Section 202 of the Clean Air Act doesn’t expressly discuss electrification, and since the standards would have significant impacts on vehicle manufacturing, employment within the fossil fuel sector, and the electrical grid.

I filed an amicus temporary within the case (Texas v. EPA, D.C. Circuit) on behalf of Senator Tom Carper, Chair of the Environment and Public Works Committee, and Representative Frank Pallone, Rating Member of the Energy and Commerce Committee, in support of EPA’s standards and the power of Congress to issue broad grants of authority to expert agencies. (I filed the temporary in my individual capability and never on behalf of UC Berkeley or CLEE.)

Along with noting that the petitioners mischaracterize EPA’s rule as an electrification mandate fairly than as an emissions standard that might be achieved partially through electrification (amongst other options), the temporary argues three major points:

  • By directing EPA to issue standards that control motorcar emissions with a purpose to protect public health and welfare, Congress in 1970 did expressly direct EPA to think about advanced technologies like electrification.
  • For this reason clear authorization, the “major questions” doctrine doesn’t apply in the primary place–and if it did, not only are the petitioners’ claims about political and economic implications overstated, but additionally they are so broad as to effectively handcuff almost any federal agency rulemaking on matters that relate to modern technologies and commerce and might implicate complex supply chains.
  • As well as, Congress’s recent passage of the Infrastructure Investment and Jobs Act and the Inflation Reduction Act, which direct billions of dollars toward electric vehicle purchases, manufacturing, and infrastructure, show Congress’s clear commitment to advancing vehicle electrification, grasp of supply chain and grid issues, and intent to support reasonable regulations like EPA’s rule.

While the rule is ultimately modest–many manufacturers are already committing to more ambitious electrification plans–the case has potentially significant implications for EPA’s ability to handle environmental challenges. The rule is squarely in keeping with EPA’s prior many years of experience regulating vehicles under the Clean Air Act, and the relevant provisions of the law could hardly be clearer concerning the authority that’s vested within the agency; a successful “major questions” challenge could seriously disrupt the agency’s ability to execute core functions. You’ll be able to access the entire briefs and case materials here.

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The next was written by Grayson Peters, Berkeley Law J.D. Candidate Class of 2024

At CLEE, we have now begun to explore how federal courts are applying the foremost questions doctrine within the aftermath of West Virginia v. EPA. Working from a listing of federal court opinions that debate the foremost questions doctrine, we’re developing a summary evaluation to trace when courts apply the doctrine in environmental cases, how they evaluate the existence of a “major query” (i.e., economic impacts, political significance), and after they discover a violation of the doctrine. Other criteria include the statute, rule, and environmental topic at issue and the president who appointed the creator of the opinion.

So far we have now identified fourteen federal court cases since West Virginia that mention the foremost questions doctrine. Of those, six identified violations and five found no violation (the remaining three cases mention, but don’t apply, the doctrine). Trump-appointed judges wrote all six of the opinions that found a violation.

Of those cases, only two – Natural Grocers v. Vilsack and United States v. Empire Bulkers Ltd. – applied the foremost questions doctrine to environmental regulations. Natural Grocers concerned required disclosures in marketing materials for bioengineered foods and Empire Bulkers concerned regulations of oil discharges from oil tankers, drillings rigs, and platforms. Neither court (under opinions written by an Obama appointee and a Clinton appointee) found a serious questions doctrine violation. 

So, Texas v. EPA is one among the primary major environmental cases that can test the federal courts’ interpretation of the “major questions” doctrine. How the D.C. Circuit rules might be a vital signal of the extent to which the judiciary may further curtail administrative agency authority to control pursuant to federal environmental statutes. Analyzing the outcomes in Texas and other “major questions” cases presents a rare opportunity to trace in real time the event of a novel judicial theory with significant real-world implications for the environment and human health.

Clean Air Act, Clean Cars Standards, climate change and Congress, major questions doctrine


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