Like many governmental agencies, the Environmental Protection Agency has an elaborate process for developing important rules. As I saw during the Obama administration, when I headed the EPA office that oversees this process, getting a major rule over the finish line can take years. Almost every step of the way offers obstacles to addressing any serious environmental problem.
This work just got much harder, if not altogether impossible. In West Virginia v. EPA, the Supreme Court held that Congress may not authorize an administrative agency like the EPA to address an issue of great economic and political significance—in the Court’s parlance, a “major question”—unless Congress speaks extremely precisely in doing so. Broad statutory language, written with the aim of empowering an agency to take on new problems in new ways, will no longer suffice.
The Court’s decision has the immediate effect of limiting the EPA’s power and flexibility in regulating fossil-fuel-fired power plants under the Clean Air Act. But it extends beyond that: Any agency that asserts authority over an issue of great economic and political significance could meet a hostile reception in the courts precisely because it has tried to do something big. Many agencies will just avoid taking such actions in the first place, knowing the risk. The obvious result could be a federal government with little ability to tackle many of the biggest issues society faces. [Continue reading…]