In West Virginia v. EPA, the Court considered the legality of the Clean Power Plan—an Obama era regulation that pointed to EPA’s authority under the Clean Air Act to impose emission limits on existing power plants achievable with the best available “system” for emissions reduction. Adopting a broad interpretation of “system,” the Clean Power Plan set emissions limits for coal power plants only achievable through “generation shifting” or the purchasing of power from lower carbon sources.
In an amicus brief brief filed on behalf of America First Policy Institute, Boyden Gray & Associates urged the Court to reverse the D.C. Circuit’s decision upholding EPA’s statutory authority and to clarify its nascent major questions doctrine. The Court appears to have listened. In a 6-3 majority opinion written by Chief Justice John Roberts, the Court found that West Virginia was a major questions case and that the Clean Power Plan was not within EPA’s statutory authority.
Responding to questions from E&E News, Boyden Gray & Associates partner Jonathan Berry explained,
The Court has finally given full voice to its long-implicit major questions doctrine. . . . It’s common sense: the more important something is, the more clearly it will be expressed, especially when it represents a significant departure from the status quo. This ruling is going to ripple over lots of cases, like EPA’s efforts to mandate electric vehicles or [the Securities and Exchange Commission’s] attempts to regulate GHG emissions.
Several arguments made by Boyden Gray & Associates were echoed in the opinions of the Court.
First, the brief argues that while the Court has sometimes previously applied the major questions doctrine as way to resolve ambiguity, it is better understood as a “clear statement rule,” that requires Congress to “speak clearly when authorizing agencies to make decisions of vast economic significance.” The Court agreed, confirming that the “clear statement” requirement is the appropriate way to apply the major questions doctrine. The brief also suggested that in determining whether a question is “major” the Court should use a tripartite test, asking if the rule is of “vast political significance,” “vast economic significance,” or encroaches in areas that are “the traditional authority of states.” In his concurring opinion, Justice Neil Gorsuch made the same division: “First, this Court has indicated that the doctrine applies when an agency claims the power to resolve a matter of great ‘political significance,’ . . . [s]econd, . . . when it seeks to regulate ‘a significant portion of the American economy,’ . . . [and t]hird, . . . when an agency seeks to ‘intrud[e] into an area that is the particular domain of state law.’”
Justice Gorsuch appears to have been particularly influenced by the brief’s specific arguments about the major questions doctrine and state authority. The brief explained that the major questions doctrine will often apply to statutes that implicate the federalism canon. “The two canons frequently travel together because regulations that impinge traditional areas of state authority are also likely to be transformative in nature, politically salient, and economically significant.” Justice Gorsuch agreed, “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.”
Boyden Gray & Associates’ amicus brief in West Virginia v. EPA is available here.
In Dobbs v. Jackson Women’s Health Organization, the Court reconsidered its previous decisions in Roe v. Wade and Planned Parenthood v. Casey. Justice Samuel Alito wrote for a five-justice majority concluding that the Constitution does not confer a right to abortion and overruling Roe and Casey.
Boyden Gray & Associates had submitted an amicus brief in the case on behalf of Reason for Life, a not-for-profit Christian ministry, arguing that many of the societal justifications Roe gave for creating a right to abortion have changed or been eliminated entirely since 1973. The brief explained,
Since Roe, legal and factual developments have reduced the strength of asserted justifications for abortion. First, the advent of safe-haven laws, which allow mothers to relinquish their infants quickly and anonymously, invalidates the view that abortion is needed to avoid burdens associated with childrearing. Second, today’s widespread acceptance of out-of-wedlock pregnancy removes Roe’s concern about helping single mothers avoid social stigma. Finally, pregnancy no longer impedes workplace participation to the extent that it did when Roe issued. Given the erosion of interests used to justify the construction of an abortion right, this Court should extinguish that judicially created right.
Justice Alito’s opinion echoed the language of the brief:
Americans who believe that abortion should be restricted press countervailing arguments about modern developments. They note that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy; that leave for pregnancy and childbirth are now guaranteed by law in many cases; that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted “safe haven” laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.
Boyden Gray & Associates’ amicus brief in Dobbs v. Jackson Women’s Health Organization is available here.