WASHINGTON (October 6, 2022)—In June, the Supreme Court issued a decision with far-reaching consequences. The 6-3 decision in West Virginia v. Environmental Protection Agency (EPA) didn’t just limit how EPA could regulate climate-endangering emissions from power plants. It also offers polluting industries and their political allies an open-ended invitation to undermine the rulemaking process and make it harder for federal agencies to create science-based policies.
In a new report, “In the Wake of West Virginia v. EPA,” policy experts from the Center for Progressive Reform, Climate Science Legal Defense Fund, Public Employees for Environmental Responsibility, and the Union of Concerned Scientists look at how Congress and the executive branch can continue to protect public health and safety despite the Supreme Court’s decision.
Experts call West Virginia v EPA a dangerous decision based on a faulty legal theory–but not one that should deter the federal government from doing their jobs. In the report, experts identify actions that Congress and the executive branch can take to uphold their responsibility to protect public health despite the challenge posed by West Virginia v EPA. Congress could pass legislation to explicitly protect federal agencies’ ability to create rules and effectively enforce laws like the Clean Air Act, as well as the Scientific Integrity Act to ensure the role of science and evidence in policymaking. In the executive branch, the regulatory process could be simplified and streamlined to ensure that agencies can quickly make and start enforcing rules. The report’s authors also suggest that agencies can tackle big issues by creating multiple smaller rules that combine for a greater impact.
“This report offers specific, tangible recommendations for protecting our regulatory system and, frankly, our democracy from improper judicial interference,” said Rachael Lyle, co-author and staff attorney at the Climate Science Legal Defense Fund. “It's a direct rebuke of the majority's opinion in West Virginia v. EPA and an urgent call to action for anyone concerned with protecting evidence-based policymaking.”
The key argument that justices used to constrain EPA in this case is the “major questions doctrine,” an idea that has no basis in the Constitution. Instead, it’s a vague theory championed by polluting industries and right-wing legal theorists, one that contradicts decades of precedent set by federal agencies and courts alike. While the regulatory process carefully balances the role of the Congress, federal agencies, and the courts today, the “major questions” theory upends that balance of power, giving judges a near-veto over how federal agencies can implement the laws Congress has passed.
“Used aggressively, the major questions doctrine can disrupt the vital work federal agencies have historically done to protect clean water, clean air, safe workplaces, and the climate,” said James Goodwin, senior policy analyst at the Center for Progressive Reform. “That could put people in real danger. Federal agencies can’t let themselves be intimidated by the fear of the courts. They need to do their job boldly and decisively.”
The report was co-authored by James Goodwin; Rachael Lyle; Kevin Bell, attorney with Public Employees for Environmental Responsibility; and Andrew Rosenberg, former director of the Center for Science and Democracy at UCS.