In the controversial Supreme Court case, West Virginia v. EPA, the high court established a new regime to limit the power of administrative agencies called the "major questions doctrine." So what is the major questions doctrine, and what does it mean for congressional and agency power? We asked a leading environmental and administrative law expert, Professor Lisa Heinzerling of Georgetown Law to explain.
Federal agencies are given great power to operate within the authority granted to them by congress. Historically, courts have given agencies broad discretion (known as "Chevron deference" after another famous Supreme Court case) as long as they are not operating in a way that is not expressly restricted and where they can show that their interpretation is reasonable. Under the major questions doctrine, however, courts will tighten its leash on agencies where the issue at hand is of critical political or economic significance. In other words, the deference by the courts stops when it comes to "major questions."
Lisa Heinzerling is a leading environmental law and adminstrative law expert and a professor at Georgetown University Law Center.
Interview with environmental and administrative law expert, Prof. Lisa Heinzerling of Georgetown Law.
Origin of the Major Questions Doctrine
Joel Cohen (host): In today's conversation, we'll take a look at a legal test that's causing shock waves through the regulatory landscape, and that is the Major Questions Doctrine. Hello and welcome to TalksonLaw. I'm Joel Cohen. Lisa Heinzerling is a professor at Georgetown Law Center. Professor, what exactly is the major questions doctrine and when was it first established?
Professor Lisa Heinzerling: It's been in the, kind of, air for about 25 years. The court, in a few cases in the ‘90s, referred to questions as being particularly important. In particular, in a case involving the FDA’s attempt to regulate tobacco. The court referred to the economic and political significance of the question and suggested that they thought Congress would speak pretty clearly if it had wanted the FDA to regulate tobacco, and that's the way the matter stood for a while. It certainly was nothing like a doctrine. It was just offered as one additional argument for a particular statutory outcome.
What is the major questions doctrine?
Prof. Heinzerling: Now with West Virginia, and arguably a couple of cases involving Covid measures where the court also rejected what the agencies did, now the Major Questions idea has been elevated to what's known in the jargon as a kind of clear statement principle, and that is that the court starts off by asking is the statute clear. If it's not clear, then whatever position is being argued on behalf of the government will lose on a strong enough version of the clear statement principle, like the one embraced in West Virginia. So, the idea is that the court basically is looking at: is this a big question? Is it a question of economic and political significance, and if it is, it's just going to look at the statute and say, “is it clear?” It doesn't do the same kind of statutory analysis that it would do in other cases – analysis of the language and history and structure of the statute in question. This doesn't do that. This really gets the card off the hook. They look – they sort of eyeball it – and say, “it's a major question,” and then at that point they're looking for extreme clarity.
Host: What does that mean, is it clear? That, I mean, that seems, in and of itself, the test seems pretty broad.
Prof. Heinzerling: I can't help but say it's not clear, right. I mean, it's just not clear how much clarity is required.
Major Questions Doctrine in West Virginia v. EPA
Host: Why don't we look at how Major Questions can be applied to the West Virginia case?
Prof. Heinzerling: Yes, so what the court did is figure out first, was this a major question? This question of deciding to enact emission reductions at power plants by looking in part at the potential of shifting electricity from coal to other kinds of power plant sources. And so the court said, “yeah that was a major question.” It was a major question. I think the court has at least six, maybe more, factors that it cites. A quite complicated multifactorial test for deciding whether something was a major question.
The multi-factor test – what is a major question?
Host: Is it worth running through or cataloging those?
Prof. Heinzerling: Well, it has to do with economic significance, political significance, the kind of age of the statute – is it a long, extant statute the court says. Is it, has the agency acted this way before? Has Congress declined to pass a statute that tackles the same kind of problem in kind of the same way? Is the provision an ancillary provision of the statute – what Chief Justice Roberts called a kind of backwater provision. And then once he found that this was indeed a major question, at that point the court was looking for extreme clarity.
Host: And was the language that was found to be too, I don't know, opaque or too broad, was that the best practices approach?
Prof. Heinzerling: Yeah, the language was the best system of emission reduction. Here, just as Chief Justice Roberts said, “well that doesn't mean anything, shorn of context,” he says, “the system doesn't mean anything.” So, he doesn't find that word clear enough, partly, I think by just completely abstracting that word from its statutory context.
Host: Under Major Questions, it doesn't matter whether or not the FDA, sorry not the FDA, it could be FDA, the EPA’s approach was brilliant, or whether it was effective or needed, all that is irrelevant if it is unclear and a major question.
Prof. Heinzerling: Correct. Correct.