The Supreme Court Has Unleashed a New Tool to Hamstring Federal Agencies. Congress Must Act.

October 6, 2022 | 10:05 am
Kjetil Ree/Wikimedia Commons
Liz Borkowski
Guest blogger

The West Virginia v. Environmental Protection Agency (EPA) decision the US Supreme Court handed down in June curtailed strategies EPA can use to slow climate change, but its problematic implications stretch far beyond greenhouse gas reduction. In a new report, experts from the Center for Progressive Reform, Public Employees for Environmental Responsibility, Climate Science Legal Defense Fund, and the Union of Concerned Scientists explain the decision and its implications for the effective functioning of the US regulatory system and recommend steps that the executive branch and Congress can take to preserve our government’s ability to address challenges to public health and wellbeing.

Congress shares power with federal agencies

When Congress passes a law, it normally delegates to the relevant federal agency (or agencies) the responsibility of writing regulations to implement that law. For instance, as the report notes, when Congress passed the Food Safety Modernization Act, it tasked the Food and Drug Administration (FDA) with creating detailed rules for food producers to follow. Such an arrangement is appropriate, given that the FDA has specialized staff expertise in human physiology, microbiology, and other areas important for crafting science-based regulations.

Implementing the law requires agencies to interpret what its authors intended, and courts have typically deferred to agencies’ interpretations when the statute is ambiguous, in a doctrine known as Chevron deference. (The doctrine is named after the case in which it was first articulated.) Congress can’t anticipate the specific new types of pollution, novel diseases, or other challenges that might arise in the future, so lawmakers typically write general laws and rely on agencies to continue revising and issuing new regulations as circumstances change.

West Virginia v. EPA upends this arrangement. The case concerns an Obama administration rule, the Clean Power Plan, that regulated greenhouse gas emissions until it was blocked by a lower court and rendered unnecessary when the power sector achieved the intended emissions reductions without the rule taking effect. Instead of deferring to the EPA’s interpretation of the Clean Air Act, the Supreme Court overturned the rule based on the “major questions doctrine.”

The doctrine has its roots in a distorted reading of a 2000 case in which the Supreme Court determined that the original Federal Food, Drug, and Cosmetic Act did not give the FDA authority to regulate tobacco products. In the West Virginia v. EPA decision, the majority stated the major questions doctrine applies in “‘extraordinary cases’ in which the ‘history and breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Because the Court determined that this was a major question, it decided that the EPA needed explicit authority for regulating as it did in the Clean Power Plan, and the Clean Air Act did not grant sufficiently explicit authority.

Public health advocates are concerned about this articulation of the major questions doctrine because courts, including the Supreme Court, could declare a vast array of regulations to be “extraordinary cases” with “economic and political significance” — and thereby strike down the kinds of regulations that let us have confidence in the quality of our air, water, and consumer products.

Indeed, the Supreme Court relied on similar reasoning, though without calling it the major questions doctrine, in striking down two regulations designed to slow the spread of COVID-19: CDC’s moratorium on evictions and the Department of Labor’s regulation instructing employers to require that their employees either get the COVID-19 vaccine or take regular COVID-19 tests. It did allow the Department of Health and Human Services to continue requiring COVID-19 vaccines for workers in healthcare facilities. But it’s hard to imagine how we can mount a robust response to emerging threats like pandemic diseases if the Supreme Court only allows one-third of regulations it reviews on the topic to stand.

Will power shift to courts?

At the moment, we don’t know whether courts will indeed use the major questions doctrine to overturn wide swaths of regulations, but there are reasons to be concerned. A group of Republican attorneys general, conservative legal activists, and funders with ties to the oil and coal industries embarked on a multi-year effort to use the judicial system to weaken the executive branch’s ability to address global warming — and the Supreme Court has handed them a weapon they’re now likely to aim at any regulation that might result in less fossil fuel use. It won’t only affect global warming regulations: Parties currently engaged in legal battles have now cited the major questions doctrine in cases addressing abortion access, LGBTQ+ discrimination, nuclear waste storage, workers’ rights and overtime pay, and more.

When plaintiffs claim that regulations they dislike constitute major questions and therefore require explicit authorization from the relevant laws, judges could treat those claims skeptically and only apply the major questions doctrine in truly extraordinary cases. However, President Trump stacked the federal judiciary with judges who are far more conservative than those appointed by any other past president, and he appointed three of the current nine Supreme Court justices.

These justices joined a Court that was already tilted towards industry: Between 2006, when Chief Justice John Roberts joined the Court, and 2017, the Court ruled in favor of the US Chamber of Commerce’s position 70 percent of the time. The Chamber of Commerce advances “pro-business” positions supported by the oil, banking, and tobacco industries, rather than businesses as a whole; several corporations have differed with its stances on climate change, anti-smoking policies, and other topics. The Chamber typically takes an anti-regulatory stance, even though a majority of the public has long supported regulations for environmental protection, workplace health and safety, drug safety, and other elements of public health.

The Constitution balances power between three branches of government. If the judicial branch decides it can overrule the executive branch by invoking the major questions doctrine and does so regularly, it’s upsetting that balance. Judges don’t face elections every few years, so power would be concentrated in the hands of the branch least accountable to the public. Judges also don’t tend to have the expertise that federal agencies do, so they’re less able to ensure regulations are grounded in science and consider evidence of disproportionate impacts on certain groups of people.

What the executive and legislative branches can do

The new report recommends several actions for both the executive and legislative branches. The authors recommend that agencies, rather than retreating in the face of this adverse decision, issue more small regulations to address major challenges. Smaller regulations are less likely to meet the “economic and political significance” characteristic that would trigger the major questions doctrine, and courts are unlikely to be able to hear challenges to every single rule promptly.

As an example, the report describes small but meaningful steps that multiple different agencies can take to address climate change, ranging from the Department of Housing and Urban Development accelerating its shift to energy-efficient fixtures in its properties to the US Department of Agriculture investing in more sustainable farming practices. Together, these smaller actions can result in substantial reductions in greenhouse gas emissions. 

The authors also recommend that the White House streamline the process of issuing regulations by eliminating the requirement for internal review by the Office of Information and Regulatory Affairs (OIRA), which is part of the White House Office of Management and Budget. Because an executive order from President Bill Clinton established this requirement, another executive order can eliminate it or reduce the proportion of regulations subject to it.

These strategies can allow the government to keep using agency expertise to carry out its responsibility to implement laws intended to protect the public. To truly prevent the problems that West Virginia v. EPA threatens to create, though, we need Congress to act.

One legislative solution is the Stop Corporate Capture Act, which Representative Pramila Jayapal introduced in the House. This bill would require deference to the agency’s “reasonable or permissible interpretation” of the relevant statute as long as the agency followed the Administrative Procedure Act requirements, which include collecting public input on draft regulations and considering that input when finalizing them.

Congress should also pass the Scientific Integrity Act, which would require agencies to adopt and enforce scientific integrity policies to protect government science from political interference. Having such infrastructure in place can help assure judges and others who evaluate the validity of regulations that agencies are following appropriate steps to produce science-based regulations as required by law.

When the Supreme Court insists that agencies only take actions explicitly authorized by law, Congress can respond by making authorizations explicit. These authorizations can come in stand-alone bills, such as Representative Alexandria Ocasio-Cortez’s EPA Regulatory Authority Act giving the EPA the authority that the Supreme Court’s West Virginia v. EPA decision said it lacked, or happen when Congress reauthorizes a law.

We need science-based regulations to protect public health and wellbeing. The West Virginia v. EPA decision signals that it might become harder to defend such rules against anti-regulatory forces. Congress and the executive branch must act to ensure that federal agencies can continue using their expertise to craft regulations that are based on evidence and protect the health and wellbeing of all. 

Liz Borkowski, MPH, is managing director of the Jacobs Institute of Women’s Health at the Milken Institute School of Public Health at George Washington University, and a member of the UCS Science Network. She serves as managing editor of Women’s Health Issues, the peer-reviewed journal of the Jacobs Institute, and works with a wide range of organizations on protecting scientific integrity in the federal government.

The UCS Science Network is an inclusive community of more than 25,000 scientists, engineers, economists, and other experts, focused on changing the world for the better. The views expressed in Science Network posts are those of the authors alone.