Purposivism for Me, Textualism for Thee: West Virginia v. Environmental Protection Agency.

AuthorDolan, Doug

West Virginia v. EPA, 142 S. Ct. 2587 (2022).


    Like any other hardy administrative law article, this Note starts with Chevron. In 1984, the Supreme Court decided the landmark case, Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. (1) There, the Court said it will defer to an agency's interpretation of a statute if that interpretation is reasonable. (2) However, because some on the Court saw Chevron deference as "wrest[ing] from [c]ourts the ultimate interpretive authority to 'say what the law is' and hand[ing] it over to the Executive," (3) exceptions to Chevron deference have appeared like worms after a storm. (4)

    The Major Questions Doctrine ("the Doctrine") is one such exception. The Doctrine establishes a presumption that agencies cannot make decisions on a major question without "clear congressional authorization." (5) In other words, courts will look at an agency's decision about a major question with "skepticism" that can be overcome only by a clear statement of authorization from Congress. (6) To determine if a question is "major," courts look to four factors: (1) the regulation's economic impact, (2) its political importance, (3) whether the regulation expands the agency's regulatory scope, and (4) the statutory basis for the regulation. (7) A textbook case is one where an agency would attempt to (a) regulate a large portion of the American economy (b) on a topic of much political controversy (c) that would result in a large shift in regulatory scope (d) based on a strained reading of a statute. (8) Much like too many glasses of a good wine, the Doctrine goes down easy enough. It is only later the implications set in.

    While the Court has relied upon the Doctrine for nearly two decades, West Virginia v. Environmental Protection Agency trumpeted its formal introduction into administrative law. (9) Relying upon its statutory mandate to regulate air pollution, the Environmental Protection Agency ("EPA") issued the Clean Power Plan. (10) The plan required, among other things, that power plants either reduce their own production of electricity or subsidize the production of energy from cleaner sources. (11) In West Virginia, the Court held that the Clean Power Plan decided a major question and thus required a clear statement of congressional authorization for the regulation. (12) Although EPA argued that [section] 111(d) of the Clean Air Act provided the requisite authority for the Clean Power Plan, the Court held that this statute did not provide a clear statement of such authorization. (13) Thus, the Court struck down the Clean Power Plan. (14)

    In the months since the decision, intermediate and trial courts have applied the Doctrine and enjoined or vacated key Democratic party regulations: vaccine mandates for federal contractors, (15) student loan forgiveness, (16) DACA, (17) and many more. (18) An analysis of the foundations, holding, and ramifications of West Virginia v. EPA is thus vital to understanding this potent tool in a judge's toolbox.

    This Note proceeds as follows. Part II details the facts and holding of West Virginia v. EPA. Part III focuses on the legal background of the case. Part III additionally discusses [section] 111(d), clear statement rules, and the Doctrine. Part IV recounts the instant decision of the case and the majority's argument for the Doctrine. Part V then argues that the Doctrine, as set forth in West Virginia v. EPA, offends the two most popular methods of statutory interpretation: textualism and purposivism. The Doctrine offends textualism because it is a clear statement rule that flouts the most natural reading of a statutory text, searches for congressional intent, relies upon legislative history to make a determination of "majorness," and is a multi-factor test that does not lead to predictable results. Further, the Doctrine offends purposivism because it erects antimajoritarian barriers to the results Congress intended.


    The procedural history of this case spanned seven years and three presidential administrations. In 2015, EPA issued the Clean Power Plan pursuant to [section] 111(d) of the Clean Air Act. (19) Section 111(d) allows EPA to set emission requirements that reflect the "best system of emission reduction [BSER]... adequately demonstrated." (20) EPA determined one of the BSER to combat carbon dioxide emissions was "generation shifting" because both regulators and power plants had long used it effectively. (21) Generation shifting is a "system" that requires transitioning the nationwide generation of electricity from coal-fired power plants with higher CO2 emissions to natural-gas-fired and renewable-energy-fired plants with lower CO2 emissions. (22) While EPA determined it could mandate a small or a great amount of transition, (23) it settled on what it called a "reasonable" amount of generation shifting: a shift in the amount of the nation's coal-generated electrical energy from 38% to 27%. (24)

    The Clean Power Plan never became law. (25) Soon after its issuance, dozens of states and other private parties sued to prevent the rule from taking effect. (26) The Supreme Court issued a stay ahead of a hearing on the merits in the D.C. Circuit. (27) Before the hearing could occur, however, Donald Trump became President, and the Trump EPA asked the court to pause the litigation as it "reconsider[ed]" the Clean Power Plan. (28) Due to the Trump EPA's reconsideration, the D.C. Circuit dismissed the case as moot. (29)

    In 2019, the Trump EPA formally repealed the Clean Power Plan. (30) In its official rulemaking, the Trump EPA argued the Clean Power Plan was a major shift in regulatory scope that would wholly reorder the electricity sector. (31) Therefore, the Trump EPA argued, the regulation decided a Major Question and required a clear statement of congressional authorization. (32) The Trump EPA argued the obscure and backwater [section] 111(d) could not serve as a clear statement of congressional authorization for the Clean Power Plan and thus repealed the regulation. (33) A number of states and private entities sued EPA for its repeal of the Clean Power Plan and its replacement rule, the Affordable Clean Energy Rule. (34) These petitioners argued EPA had invented a legal restraint that did not exist. (35) Therefore, they contended, because EPA based the Clean Power Plan repeal and the promulgation of the Affordable Clean Energy rule on a fundamental mistake of law, those laws were rendered invalid. (36) Other states and private entities intervened to defend both the repeal of the Clean Power Plan and the promulgation of the Affordable Clean Energy Rule. (37) This case, challenging the Clean Power Plan's repeal, went straight to the U.S. Court of Appeals for the D.C. Circuit. (38) The D.C. Circuit held that the Doctrine did not apply because Congress and the Supreme Court had already determined that EPA could regulate greenhouse gas emissions from power plants under [section] 111(d). (39) The D.C. Circuit also concluded the case did not implicate the Doctrine because it did not expand EPA's regulatory scope and had strong statutory support. (40) Thus, the D.C. Circuit applied normal rules of statutory interpretation and held that the statutory text did not "clearly foreclose" the Clean Power Plan. (41) Therefore, because EPA had fundamentally misunderstood the law, its repeal of the Clean Power Plan could not stand. (42) Thus, the court vacated the repeal of the Clean Power Plan and remanded the case to the agency to "consider the question afresh." (43) The parties who had intervened to defend EPA appealed, and the Supreme Court granted certiorari. (44)

    The Court held that the Doctrine applied because EPA intended to enlarge its own regulatory authority, based on a strained reading of [section] 111(d), to decide a question of economic and political importance. (45) Because the case implicated the Doctrine, the Court looked for a clear statement of congressional authorization for this regulatory shift. (46) According to the Court, [section] 111(d) was too "vague" a statutory grant to be a clear statement of congressional authorization for the Clean Power Plan, and thus the Court struck down the rule. (47)


    Environmental law is a notoriously complicated field whose absolute dullness is matched only by its incredible importance in the fight against climate change. This arcane and opaque field has stymied many a liberal do-gooder. Thus, the precise mechanisms of EPA's regulations are beyond the scope of this Note. However, a brief overview is necessary to understand how clear statement rules and the Doctrine intersect with the case. So put on your helmet, fasten your kneepads, and click your seatbelt; it will be a bumpy ride.

    1. Section 111(d)

      The Clean Air Amendments of 1970 provided EPA with three regulatory mechanisms to control pollution: the National Ambient Air Quality Standards ("NAAQS"), the Hazardous Air Pollutants ("HAP"), and the New Source Performance Standards ("NSPS") under [section] 111. (48) Certain pollutants are classified for regulation under NAAQS and others are classified under HAP. (49) If a pollutant does not fall under NAAQS or HAP, Congress provided a gap-filler, (50) or backstop, (51) provision: [section] 111. (52) Section 111(d) requires EPA to establish a standard of performance to reduce the emission of the pollutant. (53) A standard of performance is defined as the "best system of emission reduction [BSER]... adequately demonstrated" to reduce the pollutant. (54) In other words, the BSER is simply the system best proven to reduce emissions of a given pollutant. (55) From there, EPA determines the degree by which the agency could reduce emissions with the BSER and, finally, fixes the emissions cap for the pollutant based on that finding. (56)

    2. Clear Statement Rules

      Clear statement rules require clear and express language before allowing the legislature to...

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