The Supreme Court struck down the Obama-era Clean Power Plan under the Major Questions Doctrine. The Major Questions Doctrine applies when an agency asserts broad new authority over an important issue that Congress did not clearly delegate. The Court found EPA did not have clear congressional authorization to issue industry-wide emissions regulations under Section 111(d) of the Clean Air Act, as the CPP demanded major shifts in energy production beyond EPA's traditional authority. This decision raises questions about how the Major Questions Doctrine could impact administrative agencies and their interpretations of statutes in the future.

1. parsonsbehle.com
The Major Questions Doctrine
A review of the Supreme Court’s decision in West Virginia v. EPA
Garrett M. Kitamura
800 West Main Street, Suite 1300
Boise, Idaho 83702
Main: (208) 562-4900
Direct: (208) 562-4893
gkitamura@parsonsbehle.com

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This presentation is based on available information as of January
2023, but everyone must understand that the information provided is
not a substitute for legal advice. This presentation is not intended and
will not serve as a substitute for legal counsel on these issues.
Legal Disclaimer

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The Big Picture
o In 2015, Obama-era Environmental Protection Agency issued the Clean
Power Plan rule
• EPA cited Section 111 of the Clean Air Act as authority for CPP, specifically Section 111(d)
• CPP would serve to reduce carbon pollution by creating sector-wide shifts from coal to
natural gas and renewable energy
o West Virginia v. EPA (2022): Supreme Court struck down CPP
• The Court held that CPP went beyond Section 111(d)’s congressional grant of authority
• The Court reached its decision by applying the Major Questions Doctrine
o Questions remain about how the Major Questions Doctrine will affect the
future of administrative law, particularly with regard to “Chevron deference”

4. Section 111(d) of the Clean Air Act
and the Clean Power Plan

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§ 111(d) and Its Place Among CAA Programs
o National Ambient Air Quality Standards (CAA §§ 108-110)
• EPA sets air pollution standards for specific pollutants, and the States implement plans
o Hazardous Air Pollutants (CAA § 112)
• EPA addresses specific toxic air pollutants not covered under NAAQS by setting
emission standards for new and existing major sources
o New Source Performance Standards (CAA § 111)
• § 111(b): EPA identifies air pollutant sources and sets standards of performance for
new sources
• § 111(d): (a “gap filler”) EPA sets standards of performance for existing sources to
address emissions identified under §111(b) but not covered by NAAQS or HAP
§ 111(d):

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CPP Overview
o In 2015, Obama EPA identified carbon dioxide as an air pollutant
• Carbon dioxide was not covered by NAAQS or HAP
• CPP set performance standards under Section 111 for new coal and gas plants, which
necessitated the setting of performance standards for existing plants under Section 111(d)
o Three “building blocks” for existing plants:
1. Heat-rate improvements at coal-fired plants (i.e., burn coal more efficiently)
2. Shift from coal-fired plants to natural-gas-fired plants
3. Shift from coal- and gas- fired plants to low- or zero-carbon generating capacity (e.g., wind, solar)
o A major shift from past rules
• EPA calls CPP a “broader, forward-thinking approach to the design” of Section 111.

7. West Virginia v. EPA, 597 U.S. __ (2022)

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Procedural Background and Holding
o Many states and private parties filed suit in the D.C. Circuit
• Some parties sought to repeal CPP
• Other parties sought to stop Trump EPA from repealing and replacing CPP
o The D.C. Court of Appeals initially vacated the repeal of CPP.
• Court of Appeals stayed the vacatur while Biden EPA weighed creating a new rule
• Parties on all sides filed petitions of certiorari with the U.S. Supreme Court
o Supreme Court granted cert
• Writing for a 6-3 majority, Chief Justice John Roberts applied the Major Question
Doctrine and held that CPP went beyond the scope of authority granted to EPA under
Section 111(d)

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The Court’s Reasoning: What is the Major Questions Doctrine?
o The Major Questions Doctrine is based on precedent and is triggered when
an agency exercises a previously-unknown power to address a major issue
• “[O]ur precedent teaches that there are extraordinary cases … in which the history and
breadth of the authority that the agency has asserted, and the economic and political
significance of that assertion, provide a reason to hesitate before concluding that
Congress meant to confer such authority.”
o When triggered, the Doctrine creates a presumption against the agency’s
interpretation of statutory text
• “[S]eparation of powers principles and a practical understanding of legislative intent
make us reluctant to read into ambiguous statutory text the delegation claimed to be
lurking there. To convince us otherwise, something more than a merely plausible
textual basis for the agency action is necessary. The agency instead must point to
clear congressional authorization for the power it claims.”

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The Court’s Reasoning: Why does the Doctrine apply here?
o The Supreme Court applies the smell test
• EPA claims to have discovered an “unheralded power”
• It bases this power on an “ancillary” and “rarely used” provision that has functioned as a
“gap filler”
• “And the Agency’s discovery allowed it to adopt a regulatory program that Congress
had conspicuously and repeatedly declined to enact itself.”
• “Given these circumstances, there is every reason to hesitate before concluding that
Congress meant to confer on EPA the authority it claims under Section 111(d).”

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The Court’s Reasoning: Is there a “clear congressional authorization” for the CPP?
o The Supreme Court said “no” for the following reasons:
• CPP is incongruent with EPA’s past exercise of authority under Section 111; EPA has never
regulated in this manner before (i.e., demanding industry-wide shifts)
• EPA’s reading of Section 111(d) would mean Congress implicitly tasked EPA with “balancing the
many vital considerations of national policy implicated in deciding how Americans will get their
energy”
• Implementing CPP requires “technical and policy expertise not traditionally needed in EPA
regulatory development”
• Congress has not conferred similarly significant authority in other provisions of the CAA, and “[t]he
last place one would expect to find [such authority] is in the previously little-used backwater of
Section 111(d).”
• “Finally, we cannot ignore that the regulatory writ EPA newly uncovered conveniently enabled it to
enact a program that, long after the dangers posed by greenhouse gas emissions had become well
known, Congress considered and rejected multiple times.”

12. Implications and Summary of the Major
Questions Doctrine

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Effects on Agency Deference and Future Cases
o The Doctrine might curb or eventually overtake Chevron deference
• Test for evaluating when the court should defer to the agency’s answer or interpretation.
See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)
• Chevron remains alive and well, while the Major Question Doctrine has yet to come into
wider use
o The Doctrine might play some role in the upcoming Supreme Court case
Sackett v. EPA (2023)
• Where the Court will decide the proper test for determining whether wetlands are
Waters of the United States under the Clean Water Act

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The Major Question Doctrine in a Nutshell
o An agency’s regulation may be subject to, and in violation of, the Major Questions Doctrine
if the challenged regulation…
• … addresses a major issue that Congress is aware of and has declined to address itself
• … requires the agency to use forms of expertise not traditionally needed in the agency’s
regulatory development
• … is based on a vague, ancillary, or rarely-used statutory provision
• … is unprecedented, broad, or fundamentally revisionist when compared to the agency’s past
regulations made pursuant the same statutory provision
o If the Doctrine is triggered, the agency will bear the burden of pointing to a “clear
congressional authorization” to support the challenged regulation
• The agency must show more than “a merely plausible textual basis”

15. Thank You

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For more information, contact:
Garrett M. Kitamura
PARSONS BEHLE & LATIMER
800 West Main Street, Suite 1300
Boise, Idaho 83702
Main: (208) 562-4900
Direct: (208) 562-4893
gkitamura@parsonsbehle.com