I’m not going to run the Supreme Court’s Justice Gorsuch concurring opinion v. EPA thru my filter and ‘tell you what it means’, cos I ain’t CNN+.

Here’s the bill, cleaned up, without footnotes, almost all citations, appendixes, and with insubstantial edits for formatting and also so as to be usable in its audio format.

You be the judge.

Introduction – West Virginia v. EPA

West Virginia v. EPA ruled that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants.

Ruling for the state of West Virginia, the conservative justices struck down EPA standards designed to fight climate change by reshaping electricity grids. Such standards qualify as “major questions,” wrote Chief Justice John Roberts in his majority opinion, requiring explicit authorization by Congress.

In her dissent, Justice Elena Kagan wrote that the court was stripping the EPA of the power Congress gave it to respond to “the most pressing environmental challenge of our time.” President Biden, in a statement issued at the White House Thursday, described the ruling as “another devastating decision that aims to take our country backwards.”

Roberts pointed in this direction by describing the dispute at hand as a “major questions case.”

The major questions doctrine requires that agencies have explicit statutory authorization from Congress to make “decisions of vast economic and political significance.” The court “typically greet[s] assertions of extravagant statutory power over the national economy with skepticism,” Roberts wrote. To overcome that skepticism, “the Government must – under the major questions doctrine – point to clear congressional authorization to regulate in that manner” 

(source for this introduction is here: SCOTUS Decision May Limit More Than Just the EPA

SCOTUS – EPA decision. Gorsuch Concurring 

This document has had small, insubstantial edits to improve its ease and readability, also to format for its audio, text to speech. The complete decision, including all citations and footnotes can be found here https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

 

SUPREME COURT OF THE UNITED STATES
WEST VIRGINIA v ENVIRONMENTAL PROTECTION AGENCY.
NORTH AMERICAN COAL v ENVIRONMENTAL PROTECTION AGENCY.
WESTMORELAND v ENVIRONMENTAL PROTECTION AGENCY.
NORTH DAKOTA v ENVIRONMENTAL PROTECTION AGENCY.

Neil Gorsuch, concurring opinion.

To resolve today’s case the Court invokes the major questions doctrine. Under that doctrine’s terms, administrative agencies must be able to point to “‘clear congressional authorization’” when they claim the power to make decisions of vast “‘economic and political significance.’”

Like many parallel clear-statement rules in our law, this one operates to protect foundational constitutional guarantees.

I join the Court’s opinion and write to offer some additional observations about the doctrine on which it rests.

One of the Judiciary’s most solemn duties is to ensure that acts of Congress are applied in accordance with the Constitution in the cases that come before us. To help fulfill that duty, courts have developed certain “clear-statement” rules.

These rules assume that, absent a clear statement otherwise, Congress means for its laws to operate in congruence with the Constitution rather than test its bounds. In this way, these clear-statement rules help courts “act as faithful agents of the Constitution.”

Consider some examples.

The Constitution prohibits Congress from passing laws imposing various types of retroactive liability.

Consistent with this rule, Chief Justice Marshall long ago advised that “a court ought to struggle hard against a statutory construction which will, by a retrospective operation, affect the rights of parties.”

Justice Paterson likewise insisted that courts must interpret statutes to apply only prospectively “unless they are so clear, strong, and imperative, that no other meaning can be annexed to them.”

The Constitution also incorporates the doctrine of sovereign immunity.

To enforce that doctrine, courts have consistently held that nothing but express words, or an insurmountable implication would justify the conclusion that lawmakers intended to abrogate the States’ sovereign immunity.

In a similar vein, Justice Story observed that “it is a general rule in the interpretation of legislative acts not to construe them to embrace the sovereign power or government, unless expressly named or included by necessary implication.”

The major questions doctrine works in much the same way to protect the Constitution’s separation of powers.

In Article 1, the People vested all federal legislative powers in Congress. 

As Chief Justice Marshall put it, this means that “important subjects must be entirely regulated by the legislature itself, even if Congress may leave the Executive to act under such general provisions to fill up the details.”

Doubtless, what qualifies as an important subject and what constitutes a detail may be debated.

But no less than its rules against retroactive legislation or protecting sovereign immunity, the Constitution’s rule vesting federal legislative power in Congress is “vital to the integrity and maintenance of the system of government ordained by the Constitution.”

It is vital because the framers believed that a republic, a thing of the people, would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ministers, citing The Federalist Number 11, page 85.

From time to time, some have questioned that assessment. But by vesting the lawmaking power in the people’s elected representatives, the Constitution sought to ensure not only that all power would be derived from the people but also that those entrusted with it should be kept in dependence on the people.

The Constitution, too, placed its trust not in the hands of a few, but in a number of hands, so that those who make our laws would better reflect the diversity of the people they represent and have an “immediate dependence on, and an intimate sympathy with, the people.”

Today, some might describe the Constitution as having designed the federal lawmaking process to capture the wisdom of the masses.

Is Administrative Law Unlawful?

Admittedly, lawmaking under our Constitution can be difficult. But that is nothing particular to our time nor any accident. The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty, citing The Federalist Number 48.

As a result, the framers deliberately sought to make lawmaking difficult by insisting that two houses of Congress must agree to any new law and the President must concur or a legislative supermajority must override his veto.

The difficulty of the design sought to serve other ends too.

By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from input by an array of different perspectives during their consideration, and thanks to all this prove stable over time.

The need for compromise inherent in this design also sought to protect minorities by ensuring that their votes would often decide the fate of proposed legislation allowing them to wield real power alongside the majority.

The difficulty of legislating at the federal level aimed as well to preserve room for lawmaking “by governments more local and more accountable than a distant federal authority” citing National Federation of Independent Business v Sebelius and in this way allow States to serve as “laboratories for novel social and economic experiments citing New State Ice Company v Liebmann.

Permitting Congress to divest its legislative power to the Executive Branch would “dash this whole scheme” citing Department of Transportation v Association of American Railroads.

Legislation would risk becoming nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him. Citing Steven Breyer from his book Making Our Democracy Work, A Judge’s View, “The president may not have the time or willingness to review agency decisions”.

In a world like that, agencies could churn out new laws more or less at whim. Intrusions on liberty would not be difficult and rare, but easy and profuse.

Stability would be lost, with vast numbers of laws changing with every new presidential administration. Rather than embody a wide social consensus and input from minority voices, laws would more often bear the support only of the party currently in power. Powerful special interests, which are sometimes uniquely able to influence the agendas of administrative agencies, would flourish while others would be left to ever-shifting winds.

Finally, little would remain to stop agencies from moving into areas where state authority has traditionally predominated.

That would be a particularly ironic outcome, given that so many States have robust nondelegation doctrines designed to ensure democratic accountability in their state lawmaking processes.

Much as constitutional rules about retroactive legislation and sovereign immunity have their corollary clear-statement rules, Article I’s Vesting Clause has its own: the major questions doctrine. Some version of this clear-statement rule can be traced to at least 1897, when this Court confronted a case involving the Interstate Commerce Commission, the federal government’s “first modern regulatory agency.”

The Interstate Commerce Commission argued that Congress had endowed it with the power to set carriage prices for railroads. The Court deemed that claimed authority “a power of supreme delicacy and importance,” given the role railroads then played in the Nation’s life. Therefore, the Court explained, a special rule applied, quoting that decision “That Congress has transferred such a power to any administrative body is not to be presumed or implied from any doubtful and uncertain language. The words and phrases efficacious to make such a delegation of power are well understood, and have been frequently used, and if Congress had intended to grant such a power to the agency, it cannot be doubted that it would have used language open to no misconstruction, but clear and direct.”

With the explosive growth of the administrative state since 1970, the major questions doctrine soon took on special importance. In 1980, this Court held it unreasonable to assume that Congress gave an agency unprecedented powers in the absence of a clear legislative mandate. In the years that followed, the Court routinely enforced the nondelegation doctrine through the interpretation of statutory texts, and, more particularly, by giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.

In fact, this Court applied the major questions doctrine in all corners of the administrative state, whether the issue at hand involved an agency’s asserted power to regulate tobacco products, ban drugs used in physician-assisted suicide, extend Clean Air Act regulations to private homes, impose an eviction moratorium, or enforce a vaccine mandate.

The Court has applied the major questions doctrine for the same reason it has applied other similar clear-statement rules, to ensure that the government does not inadvertently cross constitutional lines. And the constitutional lines at stake here are surely no less important than those this Court has long held sufficient to justify parallel clear-statement rules. At stake is not just a question of retroactive liability or sovereign immunity, but basic questions about self-government, equality, fair notice, federalism, and the separation of powers.

The major questions doctrine seeks to protect against unintentional, oblique, or otherwise unlikely intrusions on these interests.

The doctrine does so by ensuring that, when agencies seek to resolve major questions, they at least act with clear congressional authorization and do not exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond those the people’s representatives actually conferred on them. As the Court aptly summarizes it today, the doctrine addresses a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.

Turning from the doctrine’s function to its application, it seems to me that our cases supply a good deal of guidance about when an agency action involves a major question for which clear congressional authority is required.

First, this Court has indicated that the doctrine applies when an agency claims the power to resolve a matter of great political significance, or end an earnest and profound debate across the country.

So, for example, in Gonzales, the Court found that the doctrine applied when the Attorney General issued a regulation that would have effectively banned most forms of physician-assisted suicide even as certain States were considering whether to permit the practice. In NFIB v OSHA, the Court held the doctrine applied when an agency sought to mandate COVID 19 vaccines nationwide for most workers at a time when Congress and state legislatures were engaged in robust debates over vaccine mandates.

Relatedly, this Court has found it telling when Congress has considered and rejected bills authorizing something akin to the agency’s proposed course of action. That too may be a sign that an agency is attempting to work around the legislative process to resolve for itself a question of great political significance.

This Court has said that an agency must point to clear congressional authorization when it seeks to regulate a significant portion of the American economy, or require billions of dollars in spending by private persons or entities.

The Court has held that regulating tobacco products, eliminating rate regulation in the telecommunications industry, subjecting private homes to Clean Air Act restrictions, and suspending local housing laws and regulations can sometimes check this box.

This court has said that the major questions doctrine may apply when an agency seeks to intrude into an area that is the particular domain of state law. Of course, another longstanding clear-statement rule, the federalism canon, also applies in these situations. To preserve the proper balance between the States and the Federal Government and enforce limits on Congress’s Commerce Clause power, courts must be certain of Congress’s intent before finding that it legislated in areas traditionally regulated by the States.

But unsurprisingly, the major questions doctrine and the federalism canon often travel together. When an agency claims the power to regulate vast swaths of American life, it not only risks intruding on Congress’s power, it also risks intruding on powers reserved to the States.

While this list of triggers may not be exclusive, each of the signs the Court has found significant in the past is present here, making this a relatively easy case for the doctrine’s application. The EPA claims the power to force coal and gas-fired power plants to cease operating altogether.

Whether these plants should be allowed to operate is a question on which people today may disagree, but it is a question everyone can agree is vitally important.

Congress has debated the matter frequently and so far it has conspicuously and repeatedly declined to adopt legislation similar to the Clean Power Plan.

It seems that fact has frustrated the Executive Branch and led it to attempt its own regulatory solution with the President stating that “if Congress won’t act soon, I will.”

Other suggestive factors are present too. “The electric power sector is among the largest in the U. S. economy, with links to every other sector,” citing N. Richardson from Keeping Big Cases From Making Bad Law: The Resurgent “Major Questions” Doctrine.

The Executive Branch has acknowledged that its proposed rule would force an aggressive transformation of the electricity sector through transition to zero-carbon renewable energy sources.

The Executive Branch has also predicted its rule would force dozens of power plants to close and eliminate thousands of jobs by 2025. Citing the EPA Regulatory Impact Analysis for the Clean Power Plan Final Rule, dated October 23, 2015.

Industry analysts have estimated the Clean Power Plan would cause consumers electricity costs to rise by over 200 billion, citing National Mining Association EPA’s Clean Power Plan: An Economic Impact Analysis dated 2015.

Finally, the Clean Power Plan unquestionably has an impact on federalism, as “the regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States,” citing Arkansas Electric Cooperative Corp v Arkansas Public Service Commission.

None of this is to say the policy the agency seeks to pursue is unwise or should not be pursued. It is only to say that the agency seeks to resolve for itself the sort of question normally reserved for Congress. As a result, we look for clear evidence that the people’s representatives in Congress have actually afforded the agency the power it claims.

At this point, the question becomes what qualifies as a clear congressional statement authorizing an agency’s action. Courts have long experience applying clear-statement rules throughout the law, and our cases have identified several telling clues in this context too.

Courts must look to the legislative provisions on which the agency seeks to rely “‘with a view to their place in the overall statutory scheme.’” and “Oblique or elliptical language” will not supply a clear statement.

Nor may agencies seek to hide elephants in mouseholes, or rely on gap filler provisions.

So, for example, in the SCOTUS case of M C I, this Court rejected the Federal Communication Commission’s attempt to eliminate rate regulation for the telecommunications industry based on a “subtle” provision that empowered the F C C to modify rates.

In Brown Williamson, the Court rejected the Food and Drug Administration’s attempt to regulate cigarettes based on a cryptic statutory provision that granted the agency the power to regulate drugs and devices.

And in Gonzales, the Court doubted that Congress gave the Attorney General broad and unusual authority to regulate drugs for physician-assisted suicide through oblique statutory language.

Courts may examine the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address. As the Court puts it today, it is unlikely that Congress will make an “extraordinary grant of regulatory authority through vague language in a long-extant statute,” citing Utility Air.

Recently, too, this Court found a clear statement lacking when OSHA sought to impose a nationwide COVID–19 vaccine mandate based on a statutory provision that was adopted 40 years before the pandemic and that focused on conditions specific to the workplace rather than a problem faced by society at large.

Of course, sometimes old statutes may be written in ways that apply to new and previously unanticipated situations.

But an agency’s attempt to deploy an old statute focused on one problem to solve a new and different problem may also be a warning sign that it is acting without clear congressional authority.

Courts may examine the agency’s past interpretations of the relevant statute.

A “contemporaneous” and long-held Executive Branch interpretation of a statute is entitled to some weight as evidence of the statute’s original charge to an agency.

Conversely, in NFIB v OSHA, the Court found it “telling that OSHA, in its half century of existence, had never before adopted a broad public health regulation” under the statute that the agency sought to invoke as authority for a nationwide vaccine mandate, and, noting that for decades the F D A had said it lacked statutory power to regulate cigarettes. As the Court states today “the want of an assertion of power by those who presumably would be alert’” to it is significant in determining whether such power was actually conferred.”

When an agency claims to have found a previously unheralded power, its assertion generally warrants a measure of skepticism”. Skepticism may be merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise.

As the Court explains “when an agency has no comparative expertise in making certain policy judgments. Congress presumably would not task it with doing so.”
So, for example, in Alabama Association of Realtors this Court rejected an attempt by a public health agency to regulate housing.

And in NFIB v OSHA, the Court rejected an effort by a workplace safety agency to ordain “broad public health measures that fell outside it sphere of expertise.”

Asking these questions again yields a clear answer in our case. As the Court details, the agency before us cites no specific statutory authority allowing it to transform the Nation’s electrical power supply. Instead, the agency relies on a rarely invoked statutory provision that was passed with little debate and has been characterized as an obscure, never-used section of the law. Nor has the agency previously interpreted the relevant provision to confer on it such vast authority; there is no original, longstanding, and consistent interpretation meriting judicial respect.

Finally, there is a mismatch between the EPA’s expertise over environmental matters and the agency’s claim that Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in deciding how Americans will get their energy.

Such a claimed power requires technical and policy expertise not traditionally needed in the EPA’s regulatory development.

Again, in observing this much, the Court does not purport to pass on the wisdom of the agency’s course. It acknowledges only that agency officials have sought to resolve a major policy question without clear legislative authorization to do so.

In places, the dissent seems to suggest that we should not be unduly concerned with the Constitution’s assignment of the legislative power to Congress.

Echoing Woodrow Wilson, the dissent seems to think a modern Nation” cannot afford such sentiments.”

But recently, our dissenting colleagues acknowledged that the Constitution assigns “all legislative Powers to Congress,” and bars their further delegation.

To be sure, in that case we disagreed about the exact nature of the nondelegation inquiry courts must employ to vindicate the Constitution. But like Chief Justice Marshall, we all recognized that the Constitution does impose some limits on the delegation of legislative power.
And while we all agree that administrative agencies have important roles to play in a modern nation, surely none of us wishes to abandon our Republic’s promise that the people and their representatives should have a mean entrusted with it should be kept in dependence on the people.

So what is our real point of disagreement?

The dissent next suggests that the Court strays from its commitment to textualism by relying on a clear-statement rule to resolve today’s case.

But our law is full of clear-statement rules and has been since the founding. Our colleagues do not dispute the point. In fact, they have regularly invoked many of these rules.

If that’s not the problem, perhaps the dissent means to suggest that the major questions doctrine does not belong on the list of our clear-statement rules. At times, the dissent appears to dismiss the doctrine as a get out of text free card.

The dissent even seems to suggest that the doctrine could threaten the safety and efficacy of medications or lead to the routine adulteration of food.

But then again, the dissent also acknowledges that the major questions doctrine should sensibly apply in at least some situations. The dissent even favorably highlights one application of the doctrine that our colleagues criticized less than a year ago. And, of course, our colleagues have joined other applications of the major questions doctrine in the past.

Nor does the dissent really seem to dispute that a major question is at stake in this case. As the dissent observes, the agency’s challenged action before us concerns one of “the greatest challenges of our time.”

If this case does not implicate a question of deep economic and political significance, it is unclear what might here clearly authorizes the agency to adopt the Clean Power Plan.

The dissent even complains that I have failed to conduct an exhaustive analysis of the relevant statutory language. But in this concurrence, I have sought to provide some observations about the underlying doctrine on which today’s decision rests. On the merits of the case before us, I join the Court’s opinion, which comprehensively sets forth why Congress did not clearly authorize the EPA to engage in a generation shifting approach to the production of energy in this country.

In reaching its judgment, the Court hardly professes to appoint itself the decision-maker on climate policy. The Court acknowledges only that, under our Constitution, the people’s elected representatives in Congress are the decision makers here, and they have not clearly granted the agency the authority it claims for itself.

When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands.

But the Constitution does not authorize agencies to use pen and phone regulations as substitutes for laws passed by the people’s representatives. In our Republic “it is the peculiar province of the legislature to prescribe general rules for the government of society,” citing Fletcher v Peck.

Because today’s decision helps safeguard that foundational constitutional promise, I am pleased to concur.

The end.

End?