The Supreme Court has launched a new tool to cripple federal agencies. Congress must act.


The West Virginia v. Environmental Protection Agency (EPA) The U.S. Supreme Court ruling in June narrowed the strategies the EPA can use to slow climate change, but its problematic implications extend far beyond reducing greenhouse gases. In a new report, experts from the Center for Progressive Reform, Public Employees for Environmental Responsibility, the 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 actions that the executive branch and Congress can take to preserve our government’s ability to meet public health and welfare challenges.

Congress shares power with federal agencies

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

Implementation of the law requires agencies to interpret what its authors intended, and courts generally defer to agency interpretations when the law is ambiguous, in a doctrine known as Chevron respect. (The doctrine is named after the case in which it was first formulated.) Congress cannot anticipate specific new types of pollution, new diseases, or other challenges that may arise in the future, from so legislators typically write general laws and rely on agencies to keep revising and issuing new regulations as circumstances change.

West Virginia vs. EPA upsets this arrangement. The case concerns an Obama administration rule, the Clean Power Plan, which regulated greenhouse gas emissions until it was blocked by a lower court and rendered useless when the electricity sector achieved the expected emission reductions without the rule taking effect. Instead of deferring to the EPA’s interpretation of the Clean Air Act, the Supreme Court struck down the rule based on the “major issues doctrine.”

The doctrine has its roots in a distorted reading of a 2000 case in which the Supreme Court determined that the federal Food, Drug and Cosmetic Act did not authorize the FDA to regulate tobacco products. In the West Virginia vs. EPA ruling, the majority said the major issues doctrine applies in “extraordinary cases” in which “the history and extent of the authority that [the agency] asserted,” and the “economic and political significance” of that assertion, provide “reason to hesitate before concluding that Congress “intended to confer such authority.” Because the Court determined that this was a major issue, it decided that the EPA needed explicit authority to regulate 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 issues doctrine because courts, including the Supreme Court, could declare a wide range of settlements to be “extraordinary cases” of “economic and political significance.” – and thus invalidate the kinds of regulations that allow us to have confidence in the quality of our air, our water and our consumer products.

Indeed, the Supreme Court relied on similar reasoning, but without calling it the major issues doctrine, in striking down two regulations aimed at slowing the spread of COVID-19: the CDC’s eviction moratorium and the of the Ministry of Labor ordering employers to require their employees to receive the COVID-19 vaccine or take regular COVID-19 tests. This allowed 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 disease if the Supreme Court only authorizes a third of the regulations it reviews on the subject.

Will power pass to the courts?

At this time, we do not know whether the courts will actually use the major issues doctrine to strike down large swathes of regulation, but there are reasons for concern. A group of Republican attorneys general, conservative legal activists, and funders tied to the oil and coal industries have embarked on a multi-year effort to use the court system to weaken the executive branch’s ability to fight corruption. global warming – and the Supreme Court has handed down a weapon that they are now likely to aim at any regulation that could lead to less use of fossil fuels. It won’t just affect global warming regulations: Parties currently engaged in legal battles have now cited the doctrine as key issues in cases over abortion access, LGBTQ+ discrimination, nuclear waste storage , workers’ rights and overtime pay, and more.

Where plaintiffs claim that regulations they dislike constitute major issues and therefore require explicit authorization from the relevant statutes, judges might treat such claims with skepticism and apply the major issues doctrine only in truly extraordinary. However, President Trump has stacked the federal court system with justices that are far more conservative than those appointed by any other former president, and he has appointed three of the current nine Supreme Court justices.

These justices joined a Court that was already industry-oriented: between 2006, when Chief Justice John Roberts joined the Court, and 2017, the Court ruled in favor of the position of the Chamber of Commerce of United States 70% of the time. The Chamber of Commerce promotes “pro-business” positions backed by the oil, banking and tobacco industries, rather than business as a whole; several companies have different positions on climate change, anti-smoking policies and other topics. The House generally takes an anti-regulatory stance, even though the majority of the public have long supported regulations on environmental protection, occupational health and safety, drug safety and other public health elements. .

The Constitution balances power between three branches of government. If the judiciary decides that it can override the executive by invoking the major issues doctrine, and it does so on a regular basis, that upsets that balance. Judges do not 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 of federal agencies, so they’re less able to ensure regulations are science-based and review evidence of disproportionate impacts on certain groups of people. people.

What the executive and legislative powers can do

The new report recommends several actions for the executive and legislative branches. The authors recommend that agencies, rather than retreat from this unfavorable ruling, issue more small regulations to address the big challenges. Small regulations are less likely to meet the “economic and political importance” characteristic that would trigger the major issues doctrine, and courts are unlikely to be able to quickly hear challenges to every rule.

As an example, the report outlines small but significant steps that several different agencies can take to address climate change, ranging from the Department of Housing and Urban Development accelerating its move to energy-efficient installations in its properties to the U.S. Department of Agriculture which invests in more sustainable agricultural practices. Together, these small actions can lead to substantial reductions in greenhouse gas emissions.

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

These strategies can enable the government to continue to use the agency’s expertise to fulfill its responsibility to implement laws intended to protect the public. To really prevent the problems that West Virginia vs. EPA threatens to create, however, 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 compliance with the agency’s “reasonable or authorized interpretation” of the relevant law as long as the agency follows the requirements of the Administrative Procedure Act, which include collecting public comment on draft regulations and the consideration of these comments during their finalization.

Congress is also expected to 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 an infrastructure in place can help assure judges and others who assess the validity of regulations that agencies are taking the proper 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 the authorizations explicit. These authorizations can be found in stand-alone bills, such as Rep. Alexandria Ocasio-Cortez’s EPA Regulatory Authority Act, which gives the EPA the power that the Supreme Court West Virginia vs. EPA decision said to be missing, or occur when Congress reauthorizes a law.

We need science-based regulations to protect public health and welfare. The West Virginia vs. EPA The decision signals that it could become more difficult to defend these rules against anti-regulatory forces. Congress and the executive branch must act to ensure that federal agencies can continue to use their expertise to develop evidence-based regulations and protect the health and well-being of all.


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