A recent article by Kevin Stocklin published in The Epoch Times discusses the implications of the Supreme Court’s recent decision in West Virginia v. EPA for other regulatory initiatives by the Biden Administration. In West Virginia, the Court considered whether the EPA had the authority to impose a cap-and-trade “generation shifting” program on the nation’s electric grid under Section 111 of the Clean Air Act.
Boyden Gray & Associates filed an amicus brief in the case for the America First Policy Institute, urging 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 The Epoch Times, Boyden Gray & Associates partner Jonathan Berry said, “The Supreme Court decision speaks to the legal flaws with trying to mark an entire industry for termination . . . What the Supreme Court is saying is that when you take on initiatives of major economic or political significance, those measures have to be authorized by a clear statement from Congress.”
Stocklin discusses the significance of the Court’s ruling for future regulatory initiatives by the Biden Administration. As Boyden Gray & Associates partner Jonathan Berry explains in the article, “One of the most profound aspects of this ruling is its portability across regulatory regimes.”
In rendering its West Virginia decision, the Supreme Court looked at prior rulings, including those against the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). “The common thread across those cases is the executive branch using an administrative agency to wade into policy areas beyond what Congress authorized,” Berry said.
As an example of a regulatory initiative that may be affected by the Court’s decision, Stocklin previews the “case that closely parallels West Virginia v. EPA,” of a directive from the Securities and Exchange Commission (SEC) regarding “green accounting,” in which “listed companies must provide audited reports on the greenhouse gas emissions of their operations, as well as those of their suppliers and customers.”
Finally, the Court’s decision reflects concerns about the administrative state more broadly. As Boyden Gray & Associates partner Jonathan Berry said, “The more that this administration steps over the line and claims for itself powers that the peoples’ representatives in Congress have not given it, the more we should expect a decline in trust and in legitimacy.”