Pamela King at E&E News writes on the major questions doctrine in a recent article, Inside a legal doctrine that could derail Biden climate regs. She explains,

The doctrine—which says Congress must speak clearly if it wishes to allow a federal agency to address matters of “vast economic and political significance”—has been invoked by Republican state attorneys general and conservative groups in challenges to EPA’s vehicle emissions rule and the social cost of carbon, a metric federal regulators use in cost-benefit analyses.

And during Feb. 28 oral arguments in the blockbuster Supreme Court climate case West Virginia v. EPA, the justices sought to understand how the doctrine might be applied in a challenge to emissions rules for existing power plants. They took some of their cues from a friend of the court brief filed by the America First Policy Institute, a nonprofit founded by former Trump administration officials, that said the justices should take the opportunity to more clearly define the major questions doctrine.

The America First Policy Institute brief, authored by Boyden Gray & Associates, explains that the major questions doctrine is the application of an ordinary rule of human communication:

The more important something is, the more clearly and directly it will be expressed, especially when it represents a significant departure from the status quo. The fundamental proposition of our system of government is that Congress makes the laws, and thus when it does something significant economically or politically, we expect it to say so clearly.

As the article explains, this clear statement rule is finding its way into many arguments about major regulations—from the Clean Power Plan and fuel economy rules to vaccination mandates and long-distance telephone carrier rules:

“When it’s not possible for whatever reason to get major legislation, there’s a strong temptation to address those major questions instead through the pen and the phone,” said Jonathan Berry, a partner at the firm Boyden Gray & Associates, who authored the amicus brief. . . .

“There will be no shortage of opportunities for courts to develop the major questions doctrine further in the next few years,” said Berry. “It’s going to come up again and again.” He continued: “Every pronouncement from the Supreme Court is likely an invitation for further challenges to extend and elaborate on the doctrine.”

While critics have accused the doctrine of being “inherently deregulatory,” others see it as a reasonable limitation on an agency receiving Chevron deference:

Berry of Boyden Gray said he sees the major questions doctrine as a threshold step to determining whether Chevron applies in the first place. “If Congress has spoken clearly about the subject at issue, then the major questions doctrine doesn’t curtail regulation at all,” he said.

It is unclear whether the justices will rely on the major questions doctrine in deciding West Virginia, whose decision is expected by early summer. Even if they do not, it is a safe bet that the doctrine will see more use in the coming years.

America First Policy Institute is a non-profit research institute dedicated to the advancement of policies that put the American workers, families, and communities first. Boyden Gray & Associates is a boutique litigation and public policy firm, continuing C. Boyden Gray’s decades of service as counselor to presidents, business leaders, legislators, and regulators on matters of constitutional law, regulatory policy, and international affairs.

The full E&E News article, entitled Inside a legal doctrine that could derail Biden climate regs, is available here.