This summer’s U.S. Supreme Court ruling limiting how the Environmental Protection Agency regulates power plants could have far-reaching implications for other regulations, not only from the EPA but also from other agencies.
In a 6-3 decision, the court ruled in West Virginia v. EPA that the agency cannot issue sweeping rules that place broad restrictions on the power industry, saying the regulations in question went beyond the authority that the Clean Air Act had delegated to the agency.
With the EPA’s ability to address greenhouse gas emissions from powerplants limited by the ruling, it may push more cities and states to try to fill the gap — which could mean increased attempts to force the adoption of zero-emissions vehicles.
The EPA also could decide to turn its attention from powerplants more toward vehicles, the nation’s largest source of GHG emissions — although the ruling may make the agency more cautious, fearing lawsuits challenging that authority as well.
But the ruling will likely have impacts beyond climate policy. It was the latest in a string of decisions by the conservative court revolving around just how much authority is given to regulatory agencies. One example is the court’s turnback of OSHA’s attempt to require employers to make employees get COVID-19 vaccines or go through regular testing.
Nearly every major law Congress has passed since World War II involves delegating authority to administrative agencies. Essentially, Congress passes laws requiring certain actions, but it delegates the nitty-gritty-details on how exactly to accomplish it to federal agencies, such as the EPA — or the Federal Motor Carrier Safety Administration. Career staff at the agencies have expertise in areas that elected representatives likely don’t.
Two “doctrines” are at play in this decision — the “nondelegation” doctrine and the “major issues” doctrine.
The nondelegation doctrine says Congress can delegate powers to government agencies only if it gives those agencies clear, specific directions about what actions to take. The major questions doctrine says administrative agencies must be able to point to “clear congressional authorization” when they make decisions of major “economic and political significance.”
Of course, what qualifies as a “major issue” is up for debate.
Legal scholars, as well as the dissent from the court’s liberal minority, say the court’s decision may have a chilling effect on regulations in general.
As Justice Elena Kagan said in writing the dissenting opinion, “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise.”
Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University, said the decision “touches the authority of all federal agencies that issue regulations to protect our environment, health and safety. The ripple effects of this decision are profound.”
You may argue that fewer regulations can only be a good thing. And yes, there are plenty of examples of well-meant regulations with unintended consequences. But there are times when regulations are beneficial. For instance, this summer the American Trucking Associations lauded the passage of the Ocean Shipping Reform Act.
“Thanks to this bipartisan legislation, those carriers will no longer be able to charge truckers exorbitant and illegal detention and demurrage fees, increasing efficiency and reducing costs across the supply chain,” said ATA Intermodal Motor Carrier Conference Director Jonathan Eisen in a statement.
But how does the new law do that? By ordering an administrative agency, the Federal Maritime Commission, to write new regulations covering international ocean carriers.
This editorial commentary first appeared in the August 2022 issue of Heavy Duty Trucking magazine.