Major Questions: The Supreme Court and the Decline of Textualism

At the end of its most recent and controversial term, the Supreme Court handed down a decision against the Environmental Protection Agency’s efforts to regulate greenhouse gas emissions under the Clean Air Act (West Virginia v. EPA, 142 S. Ct. 2587 (2022); Slip Opinion, ).  The Court majority announced what it called the “major questions doctrine” which effectively created an exception to its statutory interpretation method known as textualism.  The decision raises major questions in its own right, including whether this exception threatens to swallow the rules of textualism.  This article provides an initial review of the Supreme Court’s opinion and the dissent, adding to an earlier discussion of the case (farmdoc daily, April 7, 2022).

Background

As discussed previously, textualism is a judicially created method for interpreting and applying statutes that is largely credited to the late Supreme Court Justice Antonin Scalia.  It works from the premise that only the actual words of legislative text were voted on by Congress, thus only the words of the text were enacted into law.  Accordingly, the words of a statute are to be interpreted or understood in their ordinary, everyday meaning (unless technical) and they should be given the meaning the words had at the time the text was enacted (farmdoc daily, April 7, 2022).  In 1989, former Justice Kennedy explained that “statutory language cannot be construed in a vacuum” and that it was a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” (Davis v. Mich. Dept. of the Treasury, 489 U.S. 803, 809 (1989)).  The majority opinion in the West Virginia case also quotes this fundamental canon (West Virginia, Slip Op., at 16).

The statutory text at issue in the West Virginia case is contained in Section 111 of the Clean Air Act, “Standards of performance for new stationary sources” (42 U.S.C. §74111).  That section resides in Title 42 (The Public Health and Welfare), Chapter 85 (Air Pollution Prevention and Control).  Figure 1 highlights the provision in the overall statutory system between the “State implementation plans for national primary and secondary ambient air quality standards” (NAAQS) and the provision for “Hazardous air pollutants” (HAP) (42 U.S.C. §7410 and §7412 (respectively)).  These are the three provisions authorizing EPA to regulate air pollution.

Discussion

West Virginia, slip op., at 8).  The Supreme Court previously stayed the original Clean Power Plan in 2016 and the Trump Administration replaced it in 2019.  The D.C. Court of Appeals rejected the 2019 rule.  The Clean Power Plan, however, never became operational and the Biden Administration informed the courts it would begin new rulemaking rather than attempt to revive the 2015 rule.  This raises procedural and jurisdictional concerns about the Supreme Court even hearing this case.

As an initial matter, the Court majority concluded that the appellate decision reinstated the 2015 rule and threatened to harm the plaintiffs.  Chief Justice Roberts wrote the majority opinion.  He was joined by Justices Thomas, Alito, Gorsuch (who also filed a concurring opinion that Justice Alito joined), Kavanaugh, and Barrett.  These are the six ideologically conservative justices appointed by Republican Presidents, including the three by President Trump.  The dissent was written by Justice Elena Kagan and it was joined by Justices Breyer (who retired at the end of the term) and Sotomayor.  The dissenting justices are the liberal wing of the Court and were appointed by Democratic Presidents.  On the jurisdictional issue, the dissent argued that the majority issued “what is really an advisory opinion on the proper scope of the new rule EPA is considering” which violates the Constitutional requirement that the Supreme Court hears only cases and controversies (West Virginia, slip op., Kagan, dissenting, at 4).  At the very least, this matter magnifies the oddities and questions for the majority’s decision.

Procedural matters aside, the heart of the issue is the extent of EPA’s authority under Section 111.  By any logical reading of the statute—let alone the strict reading typically deployed under the textualism framework—Congress authorized three basic regulatory efforts to combat air pollution, one of which was the standards of performance under Section 111.  By its terms, that section covers pollution not otherwise regulated under the HAP and NAAQS provisions (42 U.S.C. §7411(d)(1).  The majority decision does not analyze the statute under textualism principles or methods, nor does it deploy traditional canons of statutory interpretation. Instead, the majority announced what it called the “major questions doctrine” for statutory interpretation which operates as an exception to textualism.  Specifically, “in certain extraordinary cases, both separation 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.”  In such cases, “something more than a merely plausible textual basis for the agency action is necessary” and that the “agency instead must point to clear congressional authorization for the power it claims” (West VirginiaWest VirginiaWest VirginiaWest Virginia, slip op., Kagan dissent, at 28).  By doing so, “the majority flouts the statutory text” (Id., at 12).  At one point, she notes that “looking at the text of Section 111(d) might here come in handy” (Id., at 24).  Figure 5 highlights additional points from the dissent.

The problem for the majority, according to the dissent, is the obviously broad delegation that Congress provided to EPA for regulating air pollution in the statutory text.  The “limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote . . . when it broadly authorized EPA in Section 111 to select the ‘best system of emission reduction’ for power plants” (West Virginia

As for the newly announced “major questions doctrine” the dissent argues that it is not an actual method of interpretation and that it did not exist prior to the decision.  The “majority claims it is just following precedent, but that is not so” because the “Court has never even used the term ‘major questions doctrine before’” and, most importantly, “in the relevant cases, the Court has done statutory construction of a familiar sort” (West Virginia

The final point by the dissent may be the most important, as well as the one with troubling historical precedent.  Justice Kagan, in effect, is arguing that the majority has used this new “major questions doctrine” to usurp power, taking it from Congress and the Executive branches.  This raises profound concerns about the judiciary grabbing power over important matters of policy from the elected branches of government vested with that power by the Constitution.  The quotes in Figure 8 highlight this point further.

Concluding Thoughts

In total, the opinions in West Virginia v. EPA sound concerning echoes from the 1930s when reactionaries on the Supreme Court actively worked against the New Deal legislative and regulatory efforts to combat the Great Depression (Metzger, 2017).  Among those cases was the Court’s controversial decision declaring the Agricultural Adjustment Act of 1933 unconstitutional (U.S. v. Butler, 297 U.S. 1 (1936)).  The dissent in that case called the majority decision “judicial fiat” and warned against “the mind accustomed to believe that it is the business of the courts to sit in judgment on the wisdom of legislative action” (U.S. v. Butler