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Editorial 6 MIN READ

West Virginia v. EPA was argued last week. The major questions doctrine is the point.

What the line from Brown & Williamson to UARG to the eviction moratorium to NFIB v. OSHA tells you about any federal rule your business relies on

The Editors
Staff, Incorporator.org
6 min read Updated
Contents 6 sections
  1. The case, narrowly
  2. The doctrine, historically
  3. What the doctrine actually does operationally
  4. Second-order effects for anyone who forms entities
  5. What remains unclear
  6. Sources

est Virginia v. EPA was argued eight days ago. The opinion will not be out until the Court's June term closes. But the argument, which ran for roughly two hours instead of the seventy minutes the Court originally scheduled, was the clearest signal yet that the major questions doctrine is about to become a general-purpose tool for policing federal agency rulemaking.

If you form entities for clients who touch a federal rule anywhere in their operations, you want to understand what the doctrine is and what the Court appears to be doing with it this term.

The case, narrowly

West Virginia v. EPA, No. 20-1530, challenges the EPA's authority under Section 111(d) of the Clean Air Act to set emission guidelines for existing power plants. The precipitating rule is the 2015 Clean Power Plan, which read 111(d) to allow "generation shifting" as the "best system of emission reduction": requiring coal plants to shift output to gas and renewables rather than clean up at the stack. The Trump EPA repealed the CPP and replaced it with the Affordable Clean Energy rule. The D.C. Circuit vacated ACE in January 2021 in American Lung Association v. EPA, holding the CPP's reading of 111(d) was at least permissible. The Biden EPA has said it will write a new rule and is not enforcing the old one.

That is why mootness consumed a meaningful chunk of oral argument. The government said the Court should not reach the merits because nothing is being enforced. The petitioners (West Virginia, coal producers, Westmoreland, North Dakota) argued the D.C. Circuit's construction of 111(d) is the live harm: it authorizes, on the government's own reading, an agency to restructure the grid through a sector-wide generation-shifting mandate. That the Court spent oral argument chewing on the scope of 111(d) rather than on the threshold doctrine suggests a majority willing to reach it.

The doctrine, historically

The major questions doctrine is not new. It is older than most of the briefs now flying under its name, a recurring move whenever the Court wants to blunt an agency's reading of a broad statute.

The through-line runs at least to FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). The FDA had asserted jurisdiction over cigarettes as a drug-delivery device. Justice O'Connor's majority held Congress had not delegated such authority, reasoning that "Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion." That is the template: a big regulatory claim, built on thin or oblique text, is read against the agency unless Congress spoke clearly.

The doctrine got a second wind in Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014). EPA argued its regulation of motor-vehicle greenhouse-gas emissions automatically triggered stationary-source permitting for any facility above numerical thresholds, sweeping in millions of buildings and farms Congress never contemplated. Justice Scalia rejected the reading as an "enormous and transformative expansion" that required clear congressional authorization, and wrote the line now quoted in every major questions brief: Congress "does not, one might say, hide elephants in mouseholes."

Then came the two decisions from the 2021 term that moved the doctrine from background canon to load-bearing holding.

The first was Alabama Association of Realtors v. HHS, 594 U.S. ___ (2021), the per curiam order vacating the stay of the district court's judgment against the CDC's eviction moratorium. The Court held the CDC's reliance on Section 361 of the Public Health Service Act for a nationwide eviction ban required clear congressional authorization it did not have. The key sentence: "We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance."

The second was NFIB v. OSHA, 595 U.S. ___ (Jan. 13, 2022), the per curiam stay of OSHA's Emergency Temporary Standard requiring vaccination or testing for employers of 100 or more. The Court held OSHA's reading of the OSH Act's "grave danger" language did not plainly authorize a mandate reaching roughly 84 million workers. Justice Gorsuch's concurrence (joined by Thomas and Alito) spelled out the doctrine explicitly: major questions requires Congress to speak clearly when assigning "decisions of vast economic and political significance," and the canon "is closely related to what is sometimes called the nondelegation doctrine." That linkage is the sentence West Virginia's brief leans on.

What the doctrine actually does operationally

Stripped down, it is a clear-statement rule that flips the default when three conditions show up together: a regulatory claim of large economic or political reach, a statutory hook that is either cryptic or longstanding-but-unused, and an assertion of authority the agency has not previously exercised. When all three are present, the Court will not defer to the agency's construction; it will require Congress to have said so clearly.

That narrows the space for Chevron: you do not get to step two if the canon kicks in at step zero, which is how the NFIB Court avoided a Chevron discussion it could have had. It also puts a premium on the history of the provision. In West Virginia's brief the petitioners argue Section 111(d) has been invoked only a handful of times in fifty years and never for sector-wide generation shifting. Long dormancy plus suddenly expansive use is a recurring fact pattern under this canon.

Second-order effects for anyone who forms entities

If the Court reaches the merits in West Virginia v. EPA and writes the doctrine into the United States Reports in a named majority opinion, it becomes the default tool lawyers will reach for against any federal rule with economy-wide reach. That pipeline already exists. CFTC authority over digital assets, the SEC's climate-disclosure proposal, the FTC's standing to regulate commercial data, DOL worker-classification framings, IRS reliance on the Code for anti-abuse rulemaking, and the rulemaking stack under the Corporate Transparency Act will each face the same predictable challenge: Congress did not clearly authorize this specific application.

Two things are worth getting right before telling a client the sky is falling. The doctrine polices major questions, not routine rulemaking; a rule within a statute's core subject matter, with a price tag the sponsor can defend as incremental, is not a major question. The canon activates on size and novelty together, not either alone. And it is a clear-statement rule, not a nondelegation rule. A clearly drafted statute that plainly authorizes the agency's move survives the canon even when the move is economically large. Gorsuch's NFIB concurrence hints at nondelegation, but the majority has not adopted it. If the statute is clear, find a different argument.

What remains unclear

Three things are genuinely open. Whether the majority will reach the merits at all, given the government's mootness posture. Whether the opinion, if it reaches merits, will announce the doctrine as a named canon with a test or apply it in passing; a named test changes the posture of every challenge that follows. And whether the Court signals anything about nondelegation. Gorsuch's NFIB concurrence sits alongside his 2019 Gundy dissent, and whether a five-Justice majority exists for reviving nondelegation is the larger constitutional question in the background.

If you advise someone whose product depends on a federal rule holding up in court, the useful exercise between now and June is a clean inventory of every agency action on the critical path and an honest read on how cryptic the underlying statutory grant looks. The rule that survives the next year is the one a reader could have predicted from the statutory text in 1990. The rule that does not is the one the agency built out of a long-dormant clause.

Sources

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